Omar Stratman (Protestant) vs. Leisnoi, Inc. (Respondent); Koniag, Inc. and Bureau of Indian Affairs (Intervenors) October 13, 1999 -- U.S. Department of Interior Office of Hearings and Appeals, Interior Board of Land Appeals Case No. IBLA 98-152, U.S. District Court Case no. A76-0132 CV (JKS) Recommended Decision Eligibility of Leisnoi as a village corporation under section 11(b)(3)

Challenge to the eligibility of Woody Island as a Native village under Section 11(b)(3) of the Alaska Native Claims Settlement Act, 43 U.S.C. § 1610(b)(3) (1994)


Recommended Decision *

October 13, 1999


Appearances:

  • Michael J. Schneider, Esq., Anchorage, Alaska for Omar Stratman
  • John R. Fitzgerald, Esq., New Orleans, Louisiana, and Robert L. Breckberg, Esq., Anchorage, Alaska for Leisnoi, Inc.
  • R. Collin Middleton, Esq., Anchorage, Alaska for Koniag, Inc.
  • James R. Mothershead, Esq., Anchorage, Alaska for the Bureau of Indian Affairs

Before: Administrative Law Judge Sweitzer

TABLE OF CONTENTS
  1. Statement of the case
  2. Procedural history and background
  3. Statement of facts
  4. Discussion
    1. Motions to dismiss
    2. Is Protestant collaterally estopped from raising certain arguments or issues?
    3. Should Protestant’s brief filed in state court litigation be admitted into evidence posthearing?
    4. Eligibility of the Native village of Woody Island
      1. Burden of proof and the prima facie case
      2. Did the alleged Village have 25 or more Native residents as of April 1, 1970, and did at least 13 persons who enrolled to the alleged Village use it during 1970 as a place where they actually lived for a period of time?
        1. Guidelines for determining whether at least 13 persons who enrolled to the alleged Village used it during 1970 as a place where they actually lived for a period of time
        2. Guidelines and principles for determining permanent residency
        3. Did Protestant raise a substantial doubt about the validity of the presumption of residency?
        4. Did Protestant meet his burden of proving that the alleged Village did not have 25 or more Native residents as of April 1, 1970, and that less than 13 enrollees used the alleged Village during 1970 as a place where they actually lived for a period of time?
      3. Was the “act of God” proviso invoked?
        1. Was the alleged Village known as a traditional village?
        2. Did the occurrence of one or more acts of God or government authority between April 1, 1960 and April 1, 1970 cause a temporary unoccupancy of the village in 1970?
      4. Did the Village, as of April 1, 1970, constitute a “Native village” and have an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life-style?
      5. As of April 1, 1970, were the majority of residents of the alleged Village Native?
    5. Should the hearing be reopened to allow Respondents further opportunity to present evidence on the subjective intent of potential permanent residents of the alleged Village?
  5. Conclusion
  6. Information Regarding Filing of Objections to Recommended Decision

I.

Statement of the case

          On November 21, 1995, the United States District Court for the District of Alaska (District Court) entered an Order in the case of Stratman v. Babbitt, No. A76-0132 CV (JKS), remanding (referring) the case to the Interior Board of Land Appeals (IBLA or Board) for consideration of Omar Stratman’s protest against the eligibility of Woody Island as a Native village under section 11(b)(3) of the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1610(b)(3) (1994). By Order dated November 21, 1997, the Board referred the case to this office with directions to “convene a hearing for the purpose of determining whether Woody Island meets the legal requirements for eligibility for certification as a Native village * * * [and to] issue a recommended decision.” Omar Stratman (On Judicial Remand), IBLA 96-152, Purchase Price. 10-11.

          The parties, in addition to Protestant, are (1) the Bureau of Indian Affairs (BIA), U.S. Department of the Interior, which issued an Administrative Determination finding Woody Island to be eligible as a Native village under ANCSA, (2) Leisnoi, Inc., which is the Village Corporation for the Native village of Woody Island, and (3) Koniag, Inc., which is the affected Native regional corporation. All parties and I participated in a visit to Woody Island on August 9, 1998. That visit was recorded on video and audio tape.

          Commencing August 3, 1998, a hearing lasting ten days was held in the matter, in Anchorage and Kodiak, Alaska. The parties have submitted extensive posthearing briefs, the final filed March 30, 1999, and the matter is now ripe for issuance of this Recommended Decision.

II.

Procedural history and background

          ANCSA, enacted on December 18, 1971, provides for the distribution of benefits, including approximately forty-four million acres of federal land and $962,500,000, to Alaska Natives as a settlement of all aboriginal land claims. See 43 U.S.C. §§ 1601(a), 1605, 1607, 1613; Leisnoi, Inc. v.Stratman, 154 F.3d 1062, 1064 (9th Cir. 1998). Section 11(b)(1) of ANCSA lists a number of Native villages which were presumed to be eligible for benefits (hereinafter “listed villages”), subject to a review by the Secretary of the Interior for compliance with the criteria set out in subsection (b)(2). 43 U.S.C. § 1610(b)(1) and (2).

          Those Native villages which were not listed (hereinafter “unlisted villages”) but which believed they met the criteria for eligibility could apply to the Secretary to be certified pursuant to subsection (b)(3). 43 U.S.C. § 1610(b)(3). The Native village of Woody Island (hereinafter the “alleged Village”) was not one of the listed villages, but applied for certification in 1973 (Ex. BIA-1A, p. 67). Notice of the application was published in the Federal Register. 38 Fed. Regulation. 26472 (Sept. 21, 1973).

          The statutory criteria for eligibility of unlisted villages are found at section 11(b)(3) of ANCSA, 43 U.S.C. § 1610(b)(3), which provides in pertinent part:

          (3) Native villages not listed in subsection (b)(1) hereof shall be eligible for land and benefits under this chapter * * * if the Secretary * * * determines that–

          (A) twenty-five or more Natives were residents of an established village on the 1970 census enumeration date as shown by the census or other evidence satisfactory to the Secretary, who shall make findings of fact in each instance; and

          (B) the village is not of a modern and urban character, and a majority of the residents are Natives.

          Section 3(c) of ANCSA, 43 U.S.C. § 1602(c), defines “Native village” as follows:

          (c) “Native village” means any tribe, band, clan, group, village, community, or association in Alaska * * * which meets the requirements of this chapter, and which the Secretary determines was, on the 1970 census enumeration date (as shown by the census or other evidence satisfactory to the Secretary, who shall make findings of fact in each instance), composed of twenty-five or more Natives[.]

          The implementing regulation at 43 C.F.R. § 2651.2(b) provides in pertinent part:

          (b) * * * [V]illages must meet each of the following criteria to be eligible for benefits * * *:

          (1) There must be 25 or more Native residents of the village on April 1, 1970, as shown by the census or other evidence satisfactory to the Secretary. A Native properly enrolled to the village shall be deemed a resident of the village.

          (2) The village shall have had on April 1, 1970, an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life style and at least 13 persons who enrolled thereto must have used the village during 1970 as a place where they actually lived for a period of time: Provided, That no village which is known as a traditional village shall be disqualified if it meets the other criteria specified in this subsection by reason of having been temporarily unoccupied in 1970 because of an act of God or government authority occurring within the preceding 10 years.

          (3) The village must not be modern and urban in character. * * *

          (4) In the case of unlisted villages, a majority of the residents must be Native * * *.

          As noted by the Board in its Order of referral, an unlisted village applicant must meet each of the four criteria delineated at 43 C.F.R. § 2651.2(b) to be eligible for ANCSA benefits. Omar Stratman (On Judicial Remand), IBLA 96-152, p. 7 n.9. The Board’s notation assumes that the applicant constituted, as of April 1, 1970, a “tribe, band, group, village, community, or association” within the meaning of the Section 3(c) definition of “Native village”.

          Gail Fitzpatrick, a BIA realty specialist, conducted an investigation to determine whether the alleged Village satisfied the eligibility criteria (Ex. BIA-2B, p. 162). He prepared a report dated August 6, 1973, recommending that the alleged Village be certified as an eligible Native village because he concluded that it met the four criteria (id.). The BIA Juneau Area Acting Director (Area Director) agreed and issued a proposed decision finding the alleged Village to be eligible to receive ANCSA benefits (Ex. BIA-1A, pp. 71-69). Notice of that proposed decision and the opportunity to protest it within 30 days was published in the Federal Register. 38 Fed. Reg. 35028 (Dec. 21, 1973).

          Four parties, the Sierra Club, the Alaska Wildlife Federation, the Sportsmen’s Council, and Philip Holdsworth, but not Mr. Stratman, protested the proposed decision

          (Ex. BIA-1A, pp. 110, 83). After consideration of the protests, the Area Director issued an Administrative Determination (final decision) dated February 8, 1974, finding the alleged Village to be eligible (Ex. BIA-1A, pp. 121-118). He separately issued Findings of Fact related thereto (Ex. BIA-1A, pp. 153-151). The eligibility determination was published in the Federal Register on February 21, 1974. 39 Fed. Reg. 6627.

          The protestants therein, but not Mr. Stratman, appealed the eligibility determination to the Alaska Native Claims Appeal Board (ANCAB) (Ex. BIA-1A, pp. 128-27). 1 On May 16, 1974, the Alaska Wildlife Federation, the Sportsmen’s Council, and Philip Holdsworth filed a notice stating that they were “unable to continue in the appeals proceedings due to lack of available personal representation, and insufficient funds to support continued legal counsel.” (Ex. BIA-1A, p. 429) They requested that ANCAB “continue to consider the various legal points presented by Appellants in the material already before them in their deliberations on these matters.” (Id.) On May 24, 1974, ANCAB issued an Order dismissing them as parties and stating that their previously filed briefs and arguments would be considered filed as amici curiae (id., p. 433). On July 13, 1974, the Sierra Club withdrew its protest (id., p. 445).

          By Order dated August 28, 1974, ANCAB dismissed the protestants’ appeals and directed certification of the alleged Village as eligible for ANCSA benefits (id., pp. 451-449). It noted that there were no remaining parties of record adverse to the eligibility of the alleged Village and that the legal arguments advanced by the amici curiae were without sufficient merit to justify the continuance of the proceedings (id.). That order became a final Departmental decision upon its approval by the Secretary of the Interior on September 9, 1974 (id.). 43 C.F.R. § 2651.2(a)(5). Consequently, a Certificate of Eligibility was issued by the Area Director on September 24, 1974 (id., p. 452), and published in the Federal Register on March 19, 1975. 40 Fed. Reg. 12527.

          In 1974 the Department also certified Leisnoi as a Village Corporation for the alleged Village. Leisnoi thus became eligible to select over 115,000 acres of land under ANCSA, which it would hold and manage on behalf of the alleged Village. See Leisnoi, 154 F.3d at 1065 (citing 43 U.S.C. §§ 1611, 1613).

          On July 2, 1976, Protestant and other plaintiffs filed the Federal court action which challenged the alleged Village’s eligibility and which eventually resulted in the remand (referral) of the matter to this office. He also filed an administrative appeal of a January 17, 1977, BIA Decision determining the amount of lands to which Leisnoi was entitled under section 14(a) of ANCSA. ANCAB dismissed that appeal for lack of standing. Appeal of Omar Stratman, 2 ANCAB 329 (1978).

          The Board recounted the history of the Federal court action in its order of referral, Omar Stratman (On Judicial Remand), IBLA 96-152, pp. 2-7, and it will not be repeated herein, except to note certain rulings. First, the United States Court of Appeals for the Ninth Circuit found that Protestant has standing, as a recreational user, to pursue the Federal court action, that he was entitled to actual notice of the alleged Village’s application, and that because he did not receive such notice, he should not be barred by exhaustion of administrative remedies requirements. Stratman v. Watt, 656 F.2d 1321, 1325 (9th Cir. 1981).

          Second, in a scheduling order dated May 10, 1995, United States District Judge von der Heydt identified five threshold issues as follows:

          1. Whether the court should dismiss this action for failure of plaintiff Omar Stratman (hereinafter “plaintiff”) to exhaust his administrative remedies;

          2. Whether res judicata bars this action;

          3. Whether plaintiff’s second settlement agreement with Koniag, Inc., contractually precludes Stratman from proceeding against Leisnoi, Inc;

          4. Whether Section 1427 of the Alaska National Interest Lands Conservation Act [(ANILCA), Pub. L. No. 96-487, 94 Stat. 2519-20 (1980)] constitutes congressional ratification of Leisnoi’s eligibility thus barring plaintiff’s action; and

          5. Whether plaintiff’s lis pendens should be expunged.

          Judge von der Heydt then retired and the new presiding judge, James Singleton, found in an Order dated September 13, 1995, that res judicata did not bar the action, that failure to exhaust administrative remedies did not apply to the action because “the Ninth Circuit has already determined that Stratman did not have notice of the occasion to exhaust administrative remedies,” and that Koniag’s second settlement did not preclude Protestant’s action. (Order at 2.) Referencing the concepts of ripeness and primary jurisdiction, he concluded that the case should be sent to the Board for consideration of Protestant’s challenge to the certification of the alleged Village and the issue of ratification under section 1427 of ANILCA to give the Court the benefit of the agency’s expertise and the agency the benefit of any intervening Congressional action.

          The Board, in turn, similarly sent the case to this office to determine in a recommended decision “whether Woody Island meets the legal requirements for eligibility for certification as a Native Village.” IBLA 96-152, p. 10. In so doing, it explicitly deferred ruling on any possible controlling legal issues, such as whether Protestant lacks standing, whether the doctrine of administrative finality bars consideration of Protestant’s challenge because of ANCAB’s ruling in Appeal of Omar Stratman, 2 ANCAB 329, whether the Department lacks jurisdiction because of Protestant’s failure to timely appeal the Area Director’s eligibility determination, and whether Congress ratified the alleged Village’s status as an eligible Native village by enactment of section 1427 of ANILCA.

III.

Statement of facts

          Many of the facts set forth in this Statement of facts were gleaned from an Investigative Case Report prepared on behalf of Leisnoi by E. Frank Feichtinger, a private investigator and former law enforcement officer (the Feichtinger Report) (Ex. L-DOC-108). The report is based upon a fairly exhaustive investigation of the history of Woody Island conducted by Mr. Feichtinger, including depositions, affidavits, and unsworn interviews of Leisnoi shareholders and other voluminous exhibits adduced at hearing.

          The Feichtinger Report contains a list of Natives determined by Mr. Feichtinger to be 1960’s residents of the alleged Village – individuals who physically resided in the alleged Village and maintained a residence there sometime during the time period of 1960 to 1970. Mr. Feichtinger also included a list of Natives who were deemed 1970 residents – “individuals of Native ancestry, who, in 1970, considered Woody Island their home and either physically resided there or frequented there to participate in activities consistent with their culture, tradition, and heritage. All of these individuals are also related by blood or marriage to families with generational historical ties to the village.”

          At the hearing Leisnoi maintained that each Native whose permanent residence was the alleged Village on April 1, 1970, was listed as one of the 1970 residents in the Feichtinger Report (Tr. 2330). In its posthearing briefs Leisnoi apparently has changed its position, arguing that Mr. Feichtinger’s list does not include all of the permanent residents on April 1, 1970.

          Contributions to the Feichtinger Report were made by several people, including Christopher B. Wooley, an anthropologist specializing in shoreline and archeological survey and cultural resource management, and Dr. Nancy Yaw Davis, an expert in the field of cultural anthropology in the area encompassing Woody Island. Both Mr. Wooley and Dr. Davis reviewed depositions and other materials collected by Mr. Feichtinger (Tr. 2290-92, 3443-44, 3454). Mr. Wooley also examined Woody Island for physical evidence of use and occupancy and interviewed two Leisnoi shareholders (2312, 2333-34). Dr. Davis conducted her own research, visited Woody Island three times, and interviewed 30 to 35 people

          (Tr. 3443-46, 3454-56). Mr. Wooley and Dr. Davis testified at the hearing, commended Mr. Feichtinger’s work, and agreed with the lists he generated (Tr. 2299, 3454-55).

          However, not all statements by Mr. Feichtinger in his report or in his testimony are accepted as reliable and probative, as some proved to be inaccurate, misleading, or so vague or unsubstantiated as to be of little probative worth. These inaccuracies may be attributable, in part, to the fact that his collection of interviews and affidavits was limited mostly to Leisnoi shareholders (Tr. 1259) and that memories of interviewees dimmed since the crucial time period of the decade ending in 1970.

          Woody Island is located approximately 1 mile east of Kodiak, Alaska, which is situated on the east shore of Kodiak Island (Exs. L-CHART-26; L-DOC-A2; L-BOOK-77, p. 47). The short boat ride from Kodiak to Woody Island takes only 5 to 30 minutes (Armstrong Depo., p. 109-10; Exs. S-6D, p. 28; S-6J, p. 10; Tr. 264).

          Woody Island is a heavily forested island approximately 2.8 miles long from north to south and 1.8 miles wide. The west side of Woody Island, as compared to Kodiak, receives several more hours of sunlight in the growing season because of the positions of those areas relative to mountainous terrain. Consequently, the west side of Woody Island is a better place to garden and many Natives have maintained gardens on Woody Island over the years.

          There are numerous lakes on Woody Island, including Icehouse Lake and Tanignak Lake, which are located near the western shore of the island (Ex. S-42). These lakes are also known, respectively, as Lower Lake and Upper Lake.

          A report prepared by Mr. Wooley numbers various sites on Woody Island where Native homesites exist or once existed (Ex. L-DOC-A9a). Sites 4 through 8 are located immediately north of Lower Lake in an area sometimes referred to as the North Village area. Sites 10 and 11 are located still farther north along the northwestern shore in a location referred to as the Garden Beach area. The North Village and Garden Beach areas are now owned by the Kodiak Island Borough (Ex. S-42; Tr. 2256-63). Sites 16 through 20 and 23 are located immediately south of Lower Lake in an area often called the South Village area. Finally, site 28 is located near Sawmill Point on the northeastern shore.

          Site 4 is referred to as the Pavloff homesite. It lies within U.S. Survey 1676, a 1926 survey for the homestead of Nicholai Pavloff (1846-1932) which he never perfected. Numerous people occupied the homes there at various times (see, e.g., Exs. L-DOC-96, -124, -346; Tr. 1342-45, 2682-84, 2690). One structure, referred to as the Big Pavloff house, was used by Angeline Panamariof Pavloff Maliknak and her family from approximately 1960 until it burned down in 1965 or 1966 (Ex. S-6O, pp. 8-9, 13-15).

          Site 6 is called the William Pavloff/Angeline Panamariof Pavloff Maliknak homesite, as Angeline, along with her first husband, William Pavloff, her second husband, Stephan Maliknak, and her children, were the primary users of this house before they moved to the Big Pavloff house (see, e.g., Tr. 1573-73; Ex. L-DOC-346). The homesite lies immediately south of U.S. Survey 1676 (Tr. 2256; Ex. S-42). The house was no longer standing by 1960 (Tr. 1332-33).

          Site 5 is referred to as the Sundberg homesite, as the Sundberg family, descendants of Nicholai Pavloff, were the principal users of the house there, at least prior to 1944 (Ex. L-DOC-73, -96, -122; Tr. 2712). The homesite lies within U.S. Survey 1676 and the house collapsed in 1986 (Exs. L-DOC-96; S-42; Tr. 2256).

          Site 7 is referred to as the Frump homesite, as Agnes Pavloff Frump and her family occupied the house there from 1960 to 1963. However, Mitch Gregoroff and Kelly Simeonoff, Jr., testified that the Sundberg house and Frump house are one in the same

          (Tr. 1406, 2682-83). The Frump house was in disrepair but still standing and probably occupied by Johnny Maliknak and Nicholas Pavloff in 1970 (Tr. 498-99, 1332-33, 1609-10; Ex. S-6O, pp. 8-15).

          On Site 8 three homes were built by the Kodiak Area Native Association (KANA) in the early 1970’s, one each for Johnny Maliknak, Nicholas Pavloff and Rudy Sundberg, Jr. (Tr. 161, 1332-34).

          Site 10 is referred to as the Georgi Nekeferoff homesite in recognition of the man who used the small cabin there (see, e.g. Ex. L-DOC-73). Site 11 is known as the Nicolai Maliknak/Paul Wolkoff homesite, as the named gentlemen lived in a home there until their deaths in a boating accident in the late 1950’s (Ex. L-DOC-346; Tr. 1342). Although Mr. Feichtinger opined that the small cabin on Site 10 was still standing in 1970, the evidence shows that neither that cabin nor the home on Site 11 were standing by 1970 (Tr. 1335-36, 1980-83, 2879-80).

          Site 28 is called the Naughton homesite because Charles Naughton sometimes camped in the small, dilapidated cabin located there. Most likely the cabin was not standing in 1970 (compare Tr. 163, 493, 1949-50 with Ex. L-DOC-385).

          Site 17 is named the Harmon homesite, as the Harmon family lived in a house there in the 1950’s. Mr. Feichtinger acknowledged that the house was not being used in 1970 (Tr. 1337) and, in fact, it was not even standing by 1970 (Tr. 1931-32).

          Site 18 is known as the Gabe Lowell homesite, as Mr. Lowell lived in a house there in the early 1950’s. It probably was not standing in 1960 and had definitely fallen down by 1970 (Tr. 1337-38).

          Site 19 is called the Chabitnoy house. It derives its name from the long-time resident and owner of the house, Ella Fadaoff Chabitnoy. Nicholai Litnik (Chief Yellow Pants) gave the house to Ella and Nicholas Fadaoff in approximately 1920. After Nicholas died, Ella retained the house and married Mike Chabitnoy. The house was standing and habitable in 1970 (Tr. 1944, 1972, 2753).

          Site 20 is referred to as the Simeonoff house because the Simeonoff family members were the principal users of the house there. The house is close to the Chabitnoy house and gardens were maintained by the occupants of both houses. By 1970 the Simeonoff house was more run down than the Chabitnoy house, but it was still standing and habitable (Tr. 1339, 1349-51, 1357, 1945, 1972; Ex. S-6O, p. 76).

          Site 23 is named the Fadaoff/Madsen homesite, as Edson Fadaoff, Sr., built the house there in the 1950’s and Roy Madsen bought the house and acquired title to the land in the 1970’s (unsurveyed portion of U.S. Survey 603, Tract B). The house there was barely habitable in 1970 (compare Tr. 234; Exs. L-DOC-173, -174, with Tr. 1946, 1986), and back taxes of approximately $365.00 were owed on the house when Mr. Madsen purchased from Edison Fadaoff Jr. and Joseph Fadaoff their interests in the house in 1971 or 1972 (Tr. 2884-87).

          The Harmon, Chabitnoy, and Simeonoff houses are located within U.S. Survey 3630 (Tr. 3003-04). The 8.48 acres of land described by that survey were patented to Ella Chabitnoy on March 11, 1964 (Exs. L-DOC-301; S-45). In May 1971 she sold the land to Fred and Ruth Brechan, who are non-Natives, for $2,500 (id.; Tr. 2888-89).

          The Alutiiq people have been inhabiting and using Woody Island for thousands of years (Ex. L-DOC-A9, p. 1). Mr. Wooley’s report briefly describes the history of those Natives, from a period of rich resource harvesting, to a period of whaling, fishing, wood-working, sweat-baths, extensive trade, large multi-roomed houses, and large villages with complex social ranking, including chiefs, and rich ceremonials (id.).

          Then, in the late 1700’s, the Russians subjugated the Native population in the region. Epidemics, forced relocations, and extermination of those who resisted, characterized the initial wave of foreign influence (id., p. 2; Tr. 2159-60).

          In 1805 there was a settlement on the east side of Woody Island and the Native population numbered 54 (Exs. L-BOOK-5, -58, -65). In 1837, the region suffered a smallpox epidemic. The Russians resettled the survivors into seven amalgamation villages, one of which was on Woody Island (Exs. L-BOOK-31, L-DOC-431; Tr. 2159-60).

          By 1849 a Native settlement was located on the west side of the island near a location now known as Icehouse Point (Ex. L-BOOK-5, -77). Both Icehouse Point and Icehouse Lake derive their names from an ice harvesting and warehouse operation which began on the island in 1852.

          The operators, the Russian American Company and the American Russian Company, employed the Natives of Woody Island to harvest and warehouse ice from Tanignak Lake. In 1855 the Natives were resettled from scattered settlements around the island to the west side near the ice harvesting operation (Ex. L-DOC-108, pp. 14-15).

          During the 1800’s many of the Native inhabitants of Woody Island earned a living cutting and storing ice for these companies during the winter, and hunting sea otters during the summer for their highly prized fur. By 1890 the sea otter industry began to decline because hunting was decimating the sea otter population. In 1911 sea otter hunting was prohibited to protect the remaining population.

          The Natives also seasonally used Woody Island and various outlying areas for subsistence purposes (Tr. 2264-69). It was a somewhat fluid society, with Natives sometimes living elsewhere with relatives and/or while gathering wild foodstuffs (id.). On Woody Island they gardened, fished, harvested shellfish, picked berries, gathered other edible plants, and hunted rabbits, seals, and octopus. Elsewhere they engaged in hunting deer and elk as well as the aformentioned activities.

          By 1872 a Russian Orthodox Church was located on Woody Island. Throughout the region the Church came to be a central village institution (Tr. 2164-65, 3424, 3586-90). The influence of the Church over the Natives’ lives was and is very strong in the region (Tr. 2150, 2156; Armstrong Depo., p. 130).

          Prior to World War II, the alleged Village had a chief, but the chief had little power (Ex. L-DOC-350; Tr. 2822-23). After the war Woody Island no longer had a chief or any tribal organization or government (Tr. 494, 1246-47, 2759, 2822-23).

          The Russian Orthodox Church exerted much influence over the Natives lives through peer pressure and other mechanisms (id.). A lot of Natives were members of the Church

          (Tr. 588). Most social functions were Church-related, including masquerading at the beginning of each new year and caroling at Christmas time (Exs. L-DOC-1, -350; Tr. 2792-93). Such activities ceased during World War II and were never resumed on Woody Island.

          By 1951 or 1952 the Russian Orthodox Church building on Woody Island had become so dilapidated that it was torn down and never replaced (Tr. 3580, 3605; Exs. L-BOOK-14, -15). In contrast, the Church continued to be the main communal organization for Natives living in Kodiak through the 1960’s (Tr. 1771).

          By 1886 Woody Island was the center of commercial activity in the Kodiak Islands, being home to a boat yard, the ice harvesting operation, a grist mill, the operations and wharf of the Alaska Commercial Company, and the only roads in Alaska. In 1891 the North American Commercial Company, a fur trading enterprise, established operations there, including a store.

          In 1893 the first Baptist Mission in Alaska was built on the west side of Woody Island, serving primarily as an orphanage. It began operation of the only school on Woody Island. In 1896 a Baptist chapel was built.

          During its existence the Mission cared for hundreds of children – many orphans – who came from various locations in Alaska. Many of the children continued to reside on Woody Island as adults. They and their descendants comprise a large number of the enrollees to Woody Island.

          From 1879 to 1900 the island’s predominately Native population, exclusive of the Mission children, varied from 167 to 117. In 1903 the North American Commercial Company closed its operations, including the store, on Woody Island. Woody Island has not had a store since.

          In approximately 1905, the Territorial Government began operating a school on Woody Island known as the Longwood School (Ex. L-DOC-74). It offered schooling for grades K-8 until 1928 when it began offering high school classes as well.

          In 1911 the U.S. Navy built a wireless station on Woody Island. On February 28, 1931, the wireless station was decommissioned and shortly thereafter the Territory of Alaska was given permission to use the associated buildings for the Longwood School (Ex. L-DOC-A2).

          In 1910 Woody Island’s population, including children at the Baptist Mission, was 168. In 1912 the Katmai volcanic eruption dropped ash 18 inches thick over Woody Island, causing many families to leave the island (Tr. 2729). In 1918 at least 27 Woody Island villagers and Mission children died during the Spanish flu epidemic. By 1920 the population of Woody Island had dropped to 104.

          By 1937, according to a 1971 Kodiak Island Times newspaper article, the bulk of the townsite on Woody Island had been abandoned as people moved to what is now the City of Kodiak (Ex. L-DOC-113). Long-time Woody Island resident Ella Chabitnoy confirmed that most of the island residents left before World War II (Ex. L-DOC-74).

          The newspaper article further states that when the Baptist Mission burned down in 1937, it was relocated to a situs on Kodiak Island where more services could be provided to the Mission children (Ex. L-DOC-113). There, a new facility was constructed in 1938 (id.). By the time all of the Mission children were transferred to the new facility in 1939, the population of Woody Island had dropped to 54. The enrollment in Longwood School had dropped from 71 in 1937 to 20, and the school was closed (Exs. L-DOC-351, -420, -A2).

          Apparently, the Bureau of Indian Affairs then operated a school on Woody Island for a few years before that school also closed in approximately 1943 (Exs. L-DOC-350, -351;

          Tr. 2671). Another long-time Woody Island resident, Natalie Simeonoff, stated that many people left Woody Island by the early 1940’s because of the school closing and the lack of employment opportunities on the island (Ex. L-DOC-350).

          By 1944 the island’s Native population was down to 37 (Ex. L-DOC-421). Ms. Simeonoff compared the depopulation of Woody Island to the depopulation of rural areas in the Lower 48 States in that people gradually became less dependent on the land for subsistence, buying more and more of their food, and eventually moved to the cities to earn a living (id.).

          She elaborated that many people moved to Kodiak, attracted by the lure of new high-paying jobs that materialized after the U.S. Navy began constructing a naval base seven miles from Kodiak in 1939 (id.; Ex. L-DOC-56). The concomitant appearance of a hospital, doctors, schooling beyond grade eight, electricity, and more stores and businesses also made Kodiak a more attractive place to live (Exs. L-DOC-351; L-BOOK-15). In comparison, Woody Island did not have any medical care, electricity, stores, or employment opportunities (id.). Electric lines were not run to Woody Island until the 1960’s (Tr. 449).

          In 1939 the population of Kodiak stood at approximately 450 (id.). During World War II, its population swelled to 4,000 before dropping down to 2,000 by 1950 (id.).

          After the war, daily air service and regular steamship service to Kodiak were established (Ex. L-DOC-56). Also, new sewer and water systems were constructed (id.). By 1956 Kodiak’s population had risen to 3,000. By 1966 there were 18 seafood plants in Kodiak and 8 more at other points on Kodiak Island (Ex. L-DOC-56). In 1967 the town’s population reached 7,500 (id.).

          Woody Island was also the site of Federal Government activity during the 1940’s. In 1942 the Navy constructed numerous buildings on the west side, including barracks for 200 men on the south and east shores of Icehouse Lake. It also installed a running water and sewer system (Ex. S-43). Beginning in approximately 1956, the Kodiak Baptist Mission has used many of those buildings to host a youth summer camp known as Camp Woody. The Navy also built a sawmill at Sawmill Point on the northeast part of the island. It closed its operations on Woody Island in 1945. (Ex. L-DOC-A2)

          In 1941 the Civil Aeronautics Administration (CAA), later known as the Federal Aviation Administration (FAA), established an airways communication station on the east side of Woody Island. It also built a dock on the west side and began a ferry service from Kodiak to Woody Island in 1948. That ferry later became known as the FEDAIR IV.

          The CAA/FAA employees and their families lived in Government-constructed housing on both the west and east sides of the island. Each side had its own Government-built running water system. The west side system drew water from the Tanignak Lake and pumped it through piping to a water tank. That same piping also fed water to the buildings later used as Camp Woody. From the water tank ran two additional lines of piping, one to the dock and one to the South Village. (Ex. L-DOC-347; Tr. 1445-46, 1933-36, 2775)

          Eventually, all FAA personnel were moved to the east side, where the FAA housing grew to include eight houses (Ex. L-DOC-134), a dormitory, and two 5-unit apartment buildings. In 1951 a K-8 grade school was built on the east side. Nevertheless, by the early 1950’s, educational, religious, medical, and employment services or opportunities for Natives were dramatically better in Kodiak than on Woody Island, as Woody Island had no high school, church, medical service, or businesses (Tr. 2165-66, 2752).

          By the mid-1950’s Woody Island’s population consisted of 21 FAA families living on the east side and 4 Native families living on the west side, including the Harmon’s, Simeonoff’s, and Chabitnoy’s (Ex. L-DOC-420). Because of the lack of employment opportunities there for the non-FAA Natives, most of them earned their living as fishermen (Tr. 2732-33, 2749).

          The island’s population, including the CAA/FAA families, was 111 in 1950 and 78 in 1960. The population of FAA employees and dependents reached as high as 70 people (Ex. S-6D, p. 29).

          By the late 1950’s, the Simeonoff, Chabitnoy, Fadaoff/Madsen, and Harmon houses were all plumbed and connected to the running water line that ran down to the South Village. Prior to that time the occupants of those houses relied on several wells and springs for their water supply. The other Native households without running water continued to rely upon the wells and springs and Tanignak Lake for water. (Exs. S-6F, pp. 22, 30; L-DOC-129, -146, -176, -347; Tr. 172-73. 995-96, 1242-45, 1408-14, 1445-49, 1649, 1935-36, 2774-75, 2824).

          By 1963 FEDAIR IV annually was running 2,000 times between Woody Island and Kodiak and carrying 8,000 to 9,000 passengers plus freight (Ex. L-DOC-434). Those passengers included teenagers who commuted from Woody Island to Kodiak each weekday to attend high school, as Woody Island did not have a high school.

          On April 12, 1963, the Kodiak Mirror published an announcement from the FAA that the use of the FEDAIR IV would be restricted to FAA employees, their families, regular residents of Woody Island, guests invited by FAA employees, or persons with prior permission from the FAA station manager (Ex. L-DOC-433). However, this restriction was not strictly enforced, as non-FAA persons who were not regular residents were able to continue using the ferry (see, e.g., Exs. L-DOC-129, -132, -437, -438; Armstrong Depo., p. 149; Tr. 2827).

          On March 27, 1964, an earthquake and several tidal waves struck the Kodiak archipelago. As a result, parts of Woody Island sunk or rose several feet, the Lower Lake became a saltwater lagoon, the clam beds on the island were temporarily lost, the FAA dock was destroyed, and the running water system may have been damaged (Exs. S-6O, pp. 65-66; L-DOC-129; Tr. 606-07, 992, 1410-12, 2754-56). However, no buildings were damaged (Tr. 173, 1939-40; Exs. S-6O, p. 66; S-6D, pp. 14, 19).

          Woody Island sustained relatively little damage as compared to Kodiak, which suffered severe damage, and several villages, which were essentially wiped out (see, e.g., Tr. 3593-95, 3601-03). The Native populations of those villages were relocated (see,e.g., id.).

          The FAA quickly replaced the destroyed dock on Woody Island with a narrower and shorter dock. The shortness of the dock rendered it less safe than the old dock for mooring because the currents and tidal action were stronger closer to shore. A boat tied to the dock was at risk of being smashed apart against the dock or pilings so that no one tied up to the dock overnight. (See, e.g., Ex. S-6O, p. 65; Tr. 606-07, 1361-62, 2005-07). In general, Woody Island has lacked a safe harbor or moorage throughout its history (see, e.g., Ex. L-DOC-129, -132, -173, -174).

          Nevertheless, Woody Island remained accessible by boat from Kodiak or elsewhere, as it has been throughout its history. Small boats could be dragged up on the beach near the dock or elsewhere. While the earthquake caused a loss of beach area that made this process somewhat more difficult, small boats could be and were often pulled up on the beach both before and after the earthquake. Also, boats could be moored by running lines to the beach.

          However, it has always been difficult to access Woody Island in winter or bad weather, as the passage is dangerous in a small boat and there is no safe place to moor a larger boat, especially overnight. Consequently, the ferry service provided by FEDAIR VI (a larger and safer boat) was particularly valuable in inclement weather. (Exs. L-DOC-1, -129, -132, -173, -174, -344, -346, -350, -437, -438; S-6D, pp. 50-51, 54; Armstrong Depo., pp. 105-06, 108-09, 122-23, 153; Tr. 408-11, 665-66, 1762, 1774, 2112-13, 2118, 2127-29, 2787-88, 2824, 3086-87, 3128-29, 3132-34, 3215).

          The earthquake may also have damaged the running water system. There are statements and testimony from Natives that the earthquake broke the endcap off the pipeline that terminated at the dock so that the water could not be retained in the water tank but drained away, rendering the system nonfunctional. However, Christina Hoen testified that the system was working when she moved to Woody Island shortly after the earthquake and that the endcap did not break until the fall of 1964 (Tr. 2971-72). James Hartle also testified that there was running water after the quake (Tr. 1649). Christina was not sure if the break was caused by an aftershock (Tr. 2972). It is possible that the break was attributable to other causes, such as the fact that the pipe, being wooden and old (Tr. 1942-43; Ex. L-DOC-129), may have worn out.

          In the mid- to late-1960’s, the Borough of Kodiak Island began taxing property on Woody Island (Tr. 2753, 2964; Ex. L-DOC-129). The Simeonoff’s paid taxes on the Simeonoff house (id.).

          In 1969 the FAA began phasing out its operations on Woody Island and moving its operations and personnel to Kodiak. On May 27, 1969, the Woody Island school was closed because of the planned and ongoing removal of FAA personnel, as there would no longer be a sufficient number of children (10) to justify operation of a school there.

          No non-FAA children had attended the school since approximately 1965, when the last two non-FAA children, Edison and Joseph Fadaoff, left the island. In the 1960-61 and 1961-62 school years, Joseph Fadaoff was the only non-FAA child attending school on Woody Island. Additionally, throughout the decade ending in 1970, there were no children of high school age living on Woody Island. (Exs. L-DOC-337, -420; S-6D, pp. 20-21; Tr. 180-82, 193, 233, 403, 428, 627, 655, 1057, 1290, 1941-42).

          After the school closed, FEDAIR IV ran much less frequently. In May 1971 the FAA began limiting use of FEDAIR IV to FAA personnel, their dependents, and official visitors only. By 1973 the last FAA family had vacated Woody Island. (Exs. L-DOC-107, -183, -417; S-6O, pp. 64-65; Armstrong Depo., p. 162).

          In approximately 1972 KANA built three cabins in the North Village area, one each for Johnny Maliknak, Nick Pavloff, and Rudy Sundberg, Jr. In 1974 Leisnoi began seeking acquisition of or permission to use the abandoned FAA facilities as housing for its shareholders (Ex. L-DOC-165). In 1977 and 1978 Leisnoi spent over $300,000 to renovate the former FAA housing facilities (Ex. L-DOC-164). On December 12, 1979, a fire essentially destroyed the renovated housing (Exs. L-DOC-134, -419; Tr. 3154-55). Before the fire, several people occupied the housing. Most of them were persons working on the renovation project and their family members, including Fred Zharoff and his family (Armstrong Depo., p. 162-63; Ex. L-DOC-438). Joanne Holmes, Mervin Brun and his family, and Betty and George Wallin were identified as occupants for unknown periods of time (Ex. L-DOC-438; Tr. 3080).

          Richard Simeonoff is the only Native who returned to Woody Island to live subsequent to the 1979 fire (Tr. 2181). In 1996 Leisnoi again began plans to settle the east side of Woody Island but has been hampered by Kodiak Borough zoning laws and a Lis Pendens filed on the property by Protestant.

          Leisnoi focused upon developing housing on the east side of the island because that was the only portion of Woody Island available and patented to Leisnoi under ANCSA. Most of the island, including the western half where the village existed into the twentieth century, was not available because of land grants to other entities or individuals. Stratman Exhibit 42 shows the land ownership of the island.

IV.

Discussion

          It is noted, as a preliminary matter, that the parties are in dispute as to whether certain decisions issued by ANCAB may be relied upon for guidance in the instant case. Those 11 decisions found the purported Native villages of Uyak, Litnik, Salamatof, Anton Larsen Bay, Uganik, Bells Flats, Ayakulik, Port Williams, Solomon Bearing Straits, Alexander Creek, and Pauloff Harbor ineligible to take land and other benefits under ANCSA. Each of those decisions was issued after hearing and briefing before an administrative law judge (ALJ) and issuance of a recommended decision by the ALJ. However, the parties were not permitted to take exceptions to the ALJs’ recommended decisions and to submit briefs thereon to ANCAB.

          In Koniag, Inc. v. Kleppe 405 F.Supp. 1360 (D. D.C. 1975), aff’d in part and rev’d in part, Koniag, Inc. v. Andrus, 580 F.2d 601 (D.C. Cir. 1978), 10 of those ANCAB decisions were set aside and remanded to the Secretary to permit the parties to take exceptions to the ALJs’ recommended decisions and to submit briefs thereon to ANCAB. Id. at 609. The ALJ recommended decisions themselves were not attacked and were accordingly not disturbed. Id. n.8. The remaining ANCAB decision pertaining to the alleged Village of Pauloff Harbor was reversed and that village was found eligible. While the 11 ANCAB decisions were set aside and thus lack precedential value, those decisions and the undisturbed ALJ recommended decisions have been utilized for guidance where their logic appears reasonable and applicable to the case at hand.

A.

Motions to Dismiss

          At the close of Protestant’s case-in-chief, Leisnoi and Koniag indicated that they wished to make certain motions. To conserve time for testimony, the parties agreed to delay presentation of and responses to the motions until filing of the posthearing briefs (Tr. 2664-69). It was further agreed that Leisnoi and Koniag would not waive any rights by agreeing to the delay (id.).

          Pursuant to this agreement, Leisnoi, in its posthearing briefs, has moved to dismiss Protestant’s challenge to the alleged Village’s eligibility on the following grounds: (1) Protestant lacks standing to maintain an administrative action; (2) ANCAB determined in the case of Appeal of Omar Stratman that Protestant lacked standing to challenge the alleged Village’s eligibility, that decision became final when he did not appeal it, and therefore the doctrine of administrative finality precludes his present challenge; (3) jurisdiction is lacking because Protestant failed to timely appeal the eligibility determination of the Area Director within 30 days after he acquired actual knowledge that the alleged Village had been certified as eligible; (4) Congress ratified the alleged Village’s status as an eligible Native village by enactment of section 1427 of ANILCA; (5) Protestant failed to overcome the presumption that those persons on the certified Native Roll for the alleged Village are residents of the village; (6) Protestant failed to meet his burden of proof to establish that the Area Director’s eligibility determination was incorrect. Koniag has similarly moved for dismissal upon the ground that Protestant failed to meet his burden of proof. BIA filed short briefs joining Leisnoi and Koniag in the contentions set forth in their briefs.

          In response, Protestant correctly notes that the District Court specifically instructed the Board to determine the issues of whether the alleged Village satisfied the criteria for eligibility as a Native village and whether its eligibility was legislatively ratified by section 1427 of ANILCA. He argues that the Board, and hence this office, have a duty to comply with the District Court’s instructions, regardless of whether Protestant would have been barred, based upon one or more of grounds (1) through (3) raised by Leisnoi, from pursuing this matter in an administrative appeal.

          He is correct, as an agency, on remand of a matter from a court, must obey the court’s mandate and directions without variation and, if the cause is remanded with specific directions, further proceedings before the agency must be in substantial compliance with such directions. See Mefford v. Gardner, 383 F.2d 748, 758-59 (6th Cir. 1967); see also Animal Protection Institute of America, 118 IBLA 63, 70 (1991) (the Board has no authority to clarify, alter, or amend orders issued by a Federal district court). This holds true even if the directions are erroneous. Mefford, 383 F.2d at 759.

          Moreover, the direction to determine the eligibility of the alleged Village was reiterated by the Board, which specifically deferred ruling on any of the potentially controlling legal issues which Leisnoi once again raises as grounds (1) through (4) for dismissal. The clear import of the Board’s Order is that the scope of this Recommended Decision should be limited to determining the eligibility of the alleged Village and that the potentially dispositive legal issues, such as those raised as grounds (1) through (4), are to be addressed within the Department, if at all, by the Board and not this office. This follows from the Board’s explicit deferral from ruling on those issues and its direction that the parties shall have the opportunity to file briefs registering their objections to the Recommended Decision and “address[ing] any legal issues considered by the parties to be case dispositive.” IBLA 96-152, p. 11. The implication is that the Recommended Decision is not to address the potentially dispositive legal issues, but only and certainly the eligibility of the alleged Village. At the beginning of the hearing Leisnoi agreed that such was the proper course of action (Tr. 51).

          This office is bound to follow the directions of both the District Court and the Board to determine the eligibility of the alleged Village, leaving to the Board and/or the District Court resolution of the potentially dispositive legal issues raised by Leisnoi in grounds (1) through (4) for dismissal. As to grounds (5) and (6) for dismissal, the issues of proof raised therein are addressed in Subparts 2 through 5 of Part D of this Section, which pertain to the issue of the alleged Village’s eligibility.

B.

Is Protestant collaterally estopped from raising certain arguments or issues?

          Respondents argue that Protestant is collaterally estopped from raising certain arguments or issues allegedly raised and rejected by ANCAB in addressing the appeals of the Area Director’s February 8, 1974, Administrative Determination of the alleged Village’s eligibility. Those appeals were filed by the Sierra Club, the Alaska Wildlife Federation, the Sportsmen’s Council, and Philip Holdsworth. All of them subsequently withdrew their appeals and ANCAB issued an Order dismissing the appeals, noting that there were no remaining parties of record adverse to the eligibility of the alleged Village and that the legal arguments advanced by them were without sufficient merit to justify the continuance of the proceedings.

          Protestant is not collaterally estopped by ANCAB’s Order of dismissal for at least three reasons. First, it does not appear that ANCAB adjudicated the merits of the arguments raised in that case or that the issues raised were actually litigated and necessarily decided, after a full and fair opportunity for litigation. See Annaco, Inc. v. Office of Surface Mining Reclamation and Enforcement, 119 IBLA 158, 164-66 (1991) (collateral estoppel applies only if an issue is actually and necessarily determined after a full and fair litigation of the issue, and a dismissal without prejudice did not constitute a final judgment on the merits or a determination of any issue raised). Second, Protestant was not a party to the case before ANCAB and therefore cannot be collaterally estopped by any determinations made therein unless one of the parties to that case was a “virtual representative” of Protestant. Triple R. Coal Co. v. Office of Surface Mining Reclamation and Enforcement, 126 IBLA 310, 318 n.5 (1993). This contemplates an express or implied legal relationship by which one of the parties to that case was accountable to Protestant. Id. No such relationship existed. Third, Protestant’s interests were not adequately represented by the parties to that case because they withdrew their appeals. See 18 Moore’s Federal Practice § 132.04[1][b][iv] at 132-149.

C.

Should Protestant’s brief filed in state court litigation be admitted into evidence posthearing?

          In its posthearing answering brief, Leisnoi moves to admit into evidence a brief filed by Protestant in state court litigation. Leisnoi so moves because the brief is allegedly relevant to the issue of Protestant’s standing.

          Because the standing issue is not before me, I decline to rule upon the motion. The motion is best addressed by the tribunal which will determine the standing issue, i.e., the Board.

D.

Eligibility of the Native village of Woody Island

1.

          Burden of proof and the prima facie case

          In its Order of referral, the Board held:

          Under the regulations at 43 C.F.R. § 2651.2(a)(9), “[a]nyone appealing a decision concerning the eligibility or ineligibility of an unlisted Native village shall have the burden of proof in establishing that the decision is incorrect.” In this case, Stratman has that burden.

          Therefore, the Government shall have the burden of going forward with sufficient evidence to establish a prima facie case in support of eligibility. Introduction of the BIA certification case file and the subsequent ANCAB Order should be adequate to satisfy that burden.

          Stratman will then be required to establish that the eligibility Decision was incorrect [by] a preponderance of the evidence * * *.

IBLA 96-152, p. 10. Therefore, Protestant has the burden of establishing that the alleged Village fails to meet one or more of the requirements of ANCSA and its implementing regulations.

          It is not clear whether the Board’s allocation of the burden of proof is consistent with the following allocation which was routinely applied by ANCAB when resolving appeals of village eligibility determinations:

          a. Villages listed in the Act are rebuttably presumed to meet the requirements of eligibility;

          b. Persons who appear on the Roll of Alaska Natives as residents of a named village are rebuttably presumed to be residents of the village named for purposes of village eligibility determinations;

          c. The burden is on the [protestant], if he contends that either of the above presumptions are inapplicable, to produce evidence sufficient to raise a substantial doubt about the validity of the challenged presumption;

          d. If the [protestant] has produced evidence . . . that raises a substantial doubt about the validity of any of the above presumptions, the burden is upon the respondent to produce evidence sufficient to sustain the findings of the Area Director that the village is eligible;

          e. After consideration of all of the evidence produced by the [protestant(s)] and the respondent(s), the Board will find in favor of the Area Director’s determination unless persuaded by a preponderance of the evidence to the contrary.

          U.S. Forest Service v. Village of Eyak, ANCAB VE 74-75, VE 74-81, VE 74-89 (Dec. 10, 1974) at 5. The ANCAB determination, unlike the Board’s present holding, seemed to contemplate evidence being first presented by Protestant to overcome the presumption of residency prior to the Government’s presentation of its prima facie case.

          Following the Board’s lead, I find that the introduction of the BIA certification case file and the subsequent ANCAB Order establishes a prima facie case of Woody Island’s eligibility and that the presumption of residency comes into play in determining whether the evidence presented by Protestant preponderates over that presented by the BIA, Leisnoi, and Koniag (hereinafter collectively referred to as “Respondents”). The rebuttable presumption of residency derives from 43 C.F.R. § 2651.2(b)(1), which provides, “A Native properly enrolled to the village shall be deemed a resident of the village.” ANCAB interpreted this regulation as creating a rebuttable presumption that persons who appear on the Roll of Alaska Natives as residents of a named village are residents of that village for purposes of village eligibility determinations. Alaska Wildlife Federation and Sportsmen’s Council, Inc. v. Natives of Afgonak, Inc., ANCAB VE 74-7, VE 74-8 (June 10, 1974) at 11-12. If Protestant raises a substantial doubt as to the validity of this presumption, then the presumption disappears and Woody Island’s eligibility is determined as if no presumption had ever been applicable. Bureau of Sports Fisheries & Wildlife v. Village of Pauloff Harbor (Sanak), ANCAB VE 74-92, VE 74-93, VE 74-94 (June 9, 1974), ALJ’s Recommended Decision, at 12-13.

2.

Did the alleged Village have 25 or more Native residents as of April 1, 1970, and did at least 13 persons who enrolled to the alleged Village use it during 1970 as a place where they actually lived for a period of time?

          Protestant contends that the alleged Village does not meet any of the eligibility requirements, including the requirement of having had 25 or more Native residents on the 1970 census enumeration date (April 1, 1970) as shown by the census or other evidence satisfactory to the Secretary, see 43 U.S.C. §§ 1602(c), 1610(b)(3); 43 C.F.R. § 2651.2(b)(1), and the requirement that at least 13 persons who enrolled to the alleged Village used it during 1970 as a place where they actually lived for a period of time. 43 C.F.R. § 2651.2(b)(2). Whether the alleged Village met the first requirement is an issue distinct from the issue of whether it met the second requirement. Nevertheless, the issues are addressed together to avoid repetition of voluminous facts which bear upon both issues.

a.

Guidelines for determining whether at least 13 persons who enrolled to the alleged Village used it during 1970 as a place where they actually lived for a period of time

          Several basic principles apply in determining whether “at least 13 persons who enrolled [to the alleged Village] used the village during 1970 as a place where they actually lived for a period of time.” 43 C.F.R. § 2651.2(b)(2). The first principle is obvious from the wording of the regulation: a person may qualify as one of the 13 only if that person enrolled to the alleged Village.

          Protestant argues that this principle should be extended so that persons who improperly enrolled to the alleged Village cannot qualify. According to Protestant, they are properly enrolled only if it is determined that they were, in fact, permanent residents of the alleged Village on April 1, 1970.

          Protestant’s argument cannot be sustained. Assuming, arguendo, that “properly enrolled” means that which Protestant contends it means, the term “properly enrolled” is not used in the pertinent regulation, 43 C.F.R. § 2651.2(b)(2). The term “enrolled” is used without a qualifying adverb. Subparagraph (1) of the same regulation does use the term “properly enrolled”. Its presence in subparagraph (1) and absence in subparagraph (2) is strong evidence that the promulgators of the regulation did not intend for the term “enrolled” in subparagraph (2) to mean “properly enrolled”.

          The second principle is that a person must have lived at the alleged Village site, and not somewhere else on the island, in order to qualify as one of the 13. See State of Alaska v. Village of Litnik, ANCAB VE 74-25, VE 74-96, VE 74-101, VE 74-102, VE 74-106 (Sept. 25, 1974), ALJ’s Recommended Decision, at 32, 35-36. That site is the North Village, South Village, and Garden Beach areas.

          Third, the alleged Village is not disqualified for failure to meet the occupancy requirement of at least 13 enrollees having lived there for a period of time in 1970 if the alleged Village “is known as a traditional village” and if it was “temporarily unoccupied in 1970 because of an act of God or government authority occurring within the preceding 10 years.” 43 C.F.R. § 2651.2(b)(2). As discussed in Subpart IV, D, 3 below, this “act of God” proviso does not apply and therefore the alleged Village must meet the occupancy requirement.

          The determination of whether that requirement was met depends upon the meaning of the phrase “lived for a period of time”. While the phrase has never been precisely defined, previous decisions provide some guidance. The decisions in State of Alaska v. Alexander Creek, Inc., ANCAB VE 74-31, VE 74-35, VE 74-54, VE 74-61 (Oct. 23, 1974) at 35, and Bureau of Sport Fisheries & Wildlife v. Village of Uyak, ANCAB VE 74-11 (June 9, 1974), ALJ’s Recommended Decision, at 18-19, indicate that a visit of a couple of days or two one-day visits to a purported village does not qualify as having lived there for a period of time.

          In the 1970’s, the BIA Area Office in Juneau interpreted the regulation using an informal guideline of one month (Ex. S-6k, pp. 21-29). If a person spent less than a month in the purported village in 1970, then the Area Office considered the qualifications of that person to be “pretty touchy” and it would look to find additional people who would qualify in order to certify a village as eligible (id.). The BIA guideline was not used as a hard and fast rule (id.) and it is not controlling for purposes of this decision.

b.

Guidelines and principles for determining permanent residency

          Resolution of the issue of whether the alleged Village had 25 or more Native residents as of April 1, 1970, and the subsidiary issue of whether Protestant established substantial doubt as to the validity of the presumption of residency afforded enrollees of the alleged Village, depends, in part, upon the meaning of the terms “resident” or “residence”. The review of the residency of individuals for purposes of determining village eligibility is subject to guidelines reiterated many times by ANCAB as follows:

          For determinations of village eligibility, the Board adopts the same definition of residence used by the Enrollment Coordinator, contained in 25 CFR 43h.1(k):

          “Permanent residence” means the place of domicile on April 1, 1970, which is the location of the permanent place of abode intended by the applicant to be his actual home. It is the center of the Native family life of the applicant to which he has the intent to return when absent from the place. A region or village may be the permanent residence of an applicant on April 1, 1970, even though he was not actually living there on that date, if he has continued to intend that place to be his home.

          It is helpful to compare this definition of permanent residence with the concept of “home,” defined in the RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 12, (1971) as “the place where a person dwells and which is the center of his domestic, social, and civil life.” The comments indicated that when determining whether a place is a person’s home, consideration should be given to its physical characteristics, the time one spends there, the things one does there, his intention when absent to return to that place, other dwelling places of the person and similar factors concerning those other dwelling places. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 12, Comment C at 50 (1971).

          Other factors in the definition in 25 CFR 43h.1(k) recognize the special situation of Alaska Natives, where Native family life may be characterized by patterns of kinship and activities substantially different from non-Native family life. In addition, the definition recognizes the frequently transient life style of Alaska Natives. Thus, the definition emphasizes the factors of Native family life and intent to return.

          While intent is obviously subjective and personal, it is frequently capable of objective proof, and where objective evidence is presented which contradicts subjective intent, and the objective evidence is neither rebutted nor explained, it will clearly be persuasive. On the other hand, where economic, educational, or other requirements have temporarily deprived one of any real choice, and both the subjective intent and the objective evidence indicate a genuine connection with the place of enrollment, that place is considered to be the permanent residence of the individual within the meaning of 25 CFR 43h.1(k), notwithstanding that for other purposes a court or an administrative agency may find that person’s residence or domicile to be some place other than his “permanent residence” as determined for purposes of the Alaska Native Claims Settlement Act.

          The Respondents have cited a letter from Curt Berklund, Deputy Assistant Secretary of the Interior, dated February 27, 1973, to Morris Thompson, Area Director, Bureau of Indian Affairs, Juneau, Alaska, which interprets the definition of “permanent residence” in 25 CFR 43h.1(k). The pertinent paragraph in the letter reads:

          The primary point of confusion is who now living out-of-state enrolls back to Alaska. Under the above definition a person who has at one time lived in a village or other place in Alaska and considered that place to be his permanent residence on April 1, 1970, and intends to return to that place must enter that place in column 16 on the application form and be enrolled there. If he considered some place outside of Alaska as his permanent residence on April 1, 1970, and intends to return there, he must enter that place in column 16. There is no “choice” involved. Under no circumstances may an individual who has never lived in Alaska enroll to a village in Alaska through personal choice by entering a village name in column 16 on the application form. The only way in which a person who has never lived in Alaska may be enrolled in Alaska would be by (1) showing an out-of-state permanent residence in column 16 of the application form and (2) voting “No” on the establishment of a 13th regional corporation. He would then be enrolled by the Secretary in one of the twelve regions in Alaska based upon the priorities listed in Section 5(c) of the Act. (emphasis in original)

          Considered in the context of the enrollment regulations in 25 CFR 43h, and with particular reference to the problem addressed by this letter — that is, the enrollment of persons who are residents outside the state of Alaska — the letter is not inconsistent with the interpretation of “permanent residence” adopted by the board; but neither is it particularly relevant to the problem of how the place of “permanent residence” should be determined. There is no disagreement with the proposition that one should be enrolled to his “permanent residence.”

          Natives of Afognak, Inc., supra, at 12-14.

          According to Protestant, the focus of inquiry under these guidelines should be on the individual’s place of domicile. He argues that an individual may qualify as an alleged Village resident only if he either: (a) actually resided in the alleged Village on April 1, 1970; or (b) had previously lived in the alleged Village and (1) had continued to regard the alleged Village as his home on April 1, 1970, and (2) had a present intent on April 1, 1970, to return to the alleged Village to live.

          Respondents counter that the traditional legal definition of residence or domicile is not applicable but, rather, that, in light of the Natives’ patterns of kinship and activities, the emphasis should be on two factors: (1) the individual’s ties to the place which is considered home and (2) the intent to return to that place. Leisnoi goes so far as to argue that these two factors are the only criteria.

          In support thereof, it quotes the Recommended Decision of Administrative Law Judge Painter in the Natives of Afognak, Inc. case as follows: “In other words as long as a Native has some ties with the village and intends to return there, then he may be enrolled to that village as a permanent resident, irrespective of the fact that the Native may actually be living elsewhere.” Supra, ALJ’s Recommended Decision, at 5. However, ANCAB did not adopt this conclusion of Judge Painter, but, rather, provided its own analysis as to why the village of Afognak met the eligibility requirements.

          As ANCAB repeatedly recognized, there are many factors which bear upon the determination of permanent residency and they include those listed under the definition of “home” found in the Restatement of Conflict of Laws. See, e.g., U.S. Forest Service v. Village of Kasaan, ANCAB VE 74-17, VE 74-18 (June 10, 1974) at 23-24. Those factors include the important factor of “intent to return”, upon which Respondents focus much attention; but they also include the physical characteristics of the place, the time spent there, the activities engaged in there, and similar factors regarding other dwelling places. Id.

          The definition of “permanent residence” is closely linked to the definition of “home” set forth in the Restatement. The former definition twice speaks of the place which the individual intends to be his or her home. Both definitions define that place in terms of two elements: (1) where the person dwells or abides and (2) where the center of family life is located.

          ANCAB has explained that the adopted definition of “permanent residence” in 25 C.F.R. § 43h.1(k) “speaks in terms of domicile, modified to fit the circumstances of Alaska Natives.” Dept. of Natural Resources, State of Alaska v. Village of Manley Hot Springs, ANCAB VE 74-6, VE 74-15, VE 74-16 (June 10, 1974) at 27. The regulation, as originally proposed, consisted of only the first sentence which refers to the “place of domicile * **, which is the location of the permanent place of abode intended by the applicant to be his actual home.” (Ex. BIA-1A, pp. 205-04). 37 Fed. Reg. 2679 (Feb. 4, 1972). Senator Ted Stevens commented that the proposed definition was too narrow, and should be amended to include a reference to the mental attitude of the Native (Ex. BIA-1A, p. 208). Assistant Secretary of the Interior Harrison Loesch responded to Senator’s Stevens comment by noting that the Department defined residence in terms of domicile, but that the subjective intent of the applicant with respect to his actual home should be given as much weight as possible because the United States had only minimal interest in the place of enrollment of individual applicants and because the Department recognized the necessity of many Natives to move around (id., pp. 205-03). The second and third sentences were subsequently added as clarification and explanation (id.). They refer to an “intent to return” to “the center of the Native family life” and to the fact that a Native could be absent from the place on April 1, 1970, if he “continued to intend that place to be his home.” They were derived from the definition and guidelines for determining a person’s domicile and “home” set forth in the Restatement of the Conflict of Laws (id.; Ex. S-33, p. 1).

          The intent to return is emphasized to account for the special situation of Alaska Natives, including any transient life-style or deprivation of choice as to residency stemming from economic, educational, or other requirements. See Village of Kasaan, supra, at 24; Natives of Afognak, Inc., supra, at 13. The influences of Caucasians and a cash economy on traditional Native subsistence life-styles cannot be ignored. See Village of Eyak, supra, at 32. Those influences may create educational or economic needs which can be satisfied only by long absences from an alleged village, but such absences may not destroy strong Native feelings that the village is home. See id.; Village of Kasaan, supra, at 24; State of Alaska v. Village of Council, ANCAB VE 74-47, VE 74-41, VE 74-69 (Sept. 11, 1974) at 25.

          On the other hand, erosion of Native cultural patterns and the gradual adoption of non-Native customs, technology, and the like, including long-term residency in another place, may be evidence of abandonment of the alleged village and life-style associated with “home”. Fond memories of a place are not enough to establish permanent residency there; the individual must have a continuing intent to return. State of Alaska v. Point Possession, Inc., ANCAB VE 74-55, VE 74-59, VE 74-78, VE 74-84, VE 74-86 ( ), ALJ’s Recommended Decision, at 27.

          ANCAB repeatedly emphasized the frequency and continuity of an individual’s visits to an alleged village as objective evidence of that intent. See, e.g., id., at 26-27; Village of Kasaan, supra, at 24. The terms used in the definitions of “permanent residence” and “home” – “dwell”, “domicile”, “residence”, and “home” – all contemplate an element of regularity, continuity, or longevity in the periods of occupancy of a place. Indeed, it would be difficult to conclude that a village was the center of a Native’s family life or that the Native had a continuing intent to return there when the Native has never visited there or has visited only infrequently or sporadically. See Point Posession, Inc., supra, ALJ’s Recommended Decision, at 18, 27.

          Other objective, probative evidence includes evidence relating to where individuals own property or dwellings, register to vote, pay property taxes, are employed, and are registered for purposes of automobile driver’s licenses, and the data in Columns 16 and 18 through 21 of the Alaska Native Enrollment Application Form for each individual, which data is compiled in the village’s Family List. Natives of Afognak, Inc., supra, at 23; Village of Manley Hot Springs, supra, at 22-24; Point Possession, Inc., supra, ALJ’s Recommended Decision, at 18-25; but see Village of Kasaan, supra, at 23 (such evidence of occupancy elsewhere is not necessarily inconsistent with being a permanent resident of the village); U.S. Forest Service v. Village of Chenega, ANCAB VE 74-90, VE 74-74, VE 74-80 (Sept. 10, 1974), ALJ’s Recommended Decision, at 9 (utility bills, rent receipts, and driver’s license evidencing occupancy elsewhere is of no probative value where village is unoccupied due to an act of God). The weight attributed to this evidence depends upon, among other things, whether the alleged village is temporarily unoccupied because of an act of God or governmental authority. See id. If such circumstances exist, evidence of unoccupancy of the alleged village or occupancy elsewhere may not necessarily be inconsistent with permanent residency in the alleged village. See id.; Kasaan, supra, at 23.

          While occupancy, or unoccupancy, of a place is normally a significant objective indication of residency there, unoccupancy cannot legitimately be used to prove that 25 or more Natives were not residents of a village on April 1, 1970, when application of the “act of God” proviso excuses the requirement of occupancy in 1970. Natives of Afognak, Inc., supra, at 23. If the “act of God” proviso excuses the occupancy requirement, it is very difficult for the Protestant to prove that there were not 25 Native residents. Id. However, as discussed in Subpart III, D, 3 below, the proviso does not apply in this case.

          Several final observations related to the determination of permanent residency must be made. First, the residence of minor Native children (under age 18 on April 1, 1970) should be determined according to the residence of their Native parents, in the absence of evidence of emancipation or guardianship by some other person. Village of Manley Hot Springs, supra, at 27. Further, the attainment of majority by a child does not ipso facto separate the child from the parent’s residence; the child merely acquires the power to possess a separate residence if the child desires. Alexander Creek, Inc., supra, at 32-33, 37. Thus, the permanent residence of an unmarried child who remains living with his or her parents after attaining majority, without evidence of a bona fide intention to acquire a separate residence, is determined according to the permanent residence of the parents. Id. Finally, for each minor who has been adopted or placed in the care of others to be raised, the minor’s permanent residence should be determined according to the residence of the minor’s adoptive parents or person who stands in loco parentis to the minor and with whom the minor lives. See Restatement (second) of the Conflict of Laws § 22 cmts g and i.

          Second, the emphasis on intent to return to the alleged Village implies that the individual has been there at least once before. See Point Possession, Inc., supra, ALJ’s Recommended Decision, at 18, 23. Third, a Native who is not enrolled to the alleged Village may nevertheless be considered a permanent resident thereof if he or she satisfies the criteria. Koniag, Inc., 405 F.Supp. at 1373-74.

c.

Did Protestant raise a substantial doubt about the validity of the presumption of residency?

          Applying the foregoing guidelines and principles to the evidence presented by Protestant, that evidence is clearly sufficient to raise a substantial doubt about the validity of the presumption of residency attributed to the 285 Natives listed on the certified Native Roll for the alleged Village. Such evidence consists of a variety of types.

          Citing various ANCAB holdings, Respondents argue that each of several types of evidence cannot individually establish a substantial doubt. Their arguments are inapposite because it is the totality of the evidence presented by Protestant in his case-in-chief, rather than any one piece thereof, which establishes the substantial doubt.

          Each of the following types of evidence contributed to the establishment of substantial doubt. First, no adequate investigation of the permanent residency of the Natives enrolled to the alleged Village had been made by the Department prior to the hearing in this matter.

          Marie Redick Unger, one of the “enumerators” who worked under contract with the BIA to assist Natives in completing the enrollment applications, testified that the enumerators were instructed to accept the Natives’ representations on the applications without challenging or investigating them (Ex. S-6L, pp. 6-7). The Enrollment Coordinator similarly testified that, in general, the enrollment of each Native to the alleged Village was not based on any investigation into the Native’s permanent residency, but was based solely on the Native’s own application statement of the place of permanent residency (Ex. S-6G, pp. 29-30, 34-35).

          The resulting Native Roll was then cited by the Area Director to support his finding that the alleged Village had 25 or more residents as of April 1, 1970. He also referenced Mr. Fitzpatrick’s similar finding, but that finding is not grounded upon an adequate investigation.

          Mr. Fitzpatrick’s report provides in pertinent part:

          Woody Island village is listed in the 1970 census with a population of 41. * * *

          * * * * * * *

          On my recent visit to Woody Island village site, I observed several Native dwellings, fish racks, smoke houses, and a storage shed. I interviewed residents of Woody Island village, and determined that the village does exist and that more than 13 Natives actually used the village before April 1970, on a seasonal and year-round basis.

(Ex. BIA-2B, p. 162). The 22 enrollees who submitted affidavits in support of the alleged Village’s application are listed as persons who so used the alleged Village (id., p. 161).

          Mr. Fitzpatrick also noted that the majority of residents were Native and that the number of non-Native residents as of April 1, 1970, was 40 (id., p. 161). He indicated that the alleged Village was in existence, as evidenced by attached photographs and “residences, storage buildings, schoolhouse, powerhouse, cold storage, fuel tank farm, water plant, garage, office bldg., community center (library), Camp Woody, dock facilities, and marina.” (Id.). He concluded that the alleged Village had met all the eligibility requirements, including the 25-resident requirement (id., p. 162).

          His 1978 deposition testimony (Ex. S-6M) shows the following:

          (1) that his on-site field examination of Woody Island lasted only 3 or 4 hours (pp. 17, 100-02, 119);

          (2) that, based upon the documentation that had been submitted in support of the alleged Village’s application, he assumed that the alleged Village was eligible prior to his field examination (pp. 28-29);

          (3) that his field examination focused primarily on the FAA complex and its facilities (pp. 30-31);

          (4) that nearly all of the structures listed in the Village Check List as evidencing the village’s physical location were the FAA’s facilities (pp. 66-67);

          (5) that the facilities and dwellings in the attached photographs were the FAA’s facilities (pp. 60-61);

          (6) that he regarded the FAA facilities and dwellings as relevant to the alleged Village’s eligibility because the alleged Village was expecting to obtain use of them under a use permit (pp. 30-31, 61-65);

          (7) that the statement in his report that he observed “several Native dwellings” was based upon only 1 house – Nick Pavloff’s – determined to be occupied by a Native, another standing house which he saw from a distance, and the debris of several uninhabitable houses whose origins were unknown (pp. 31-33, 37-39, 52-53, 120-21);

          (8) that if he had excluded the FAA facilities and dwellings, he would have reported that the alleged Village was not in existence (p. 121);

          (9) that his interviews were limited to 10 to 15 enrollees of the alleged Village, each of whom stated that they camped at or otherwise used Woody Island in 1970, and that he could only identify 5 of them (pp. 54-59, 109-10, 119-20);

          (10) that he interviewed only 4 of the 22 enrollees who submitted affidavits in support of the alleged Village’s application and that he did not question any of them specifically about the content of their affidavits because, among other reasons, he had not seen the affidavits at the time of the interviews (pp. 71-72, 77-79, 109-10);

          (11) that he only saw one Native, Nick Pavloff, on the island during his field examination (pp. 31-33, 37-39);

          (12) that, consistent with his visual observations, the 1970 census figures provided to him by the BIA showed that only 1 of the 41 residents of the alleged Village was Native (pp. 67-70, 104-06); and

          (13) that, in light of the census figures, it is unclear how he concluded that a majority of the residents were Native, but he apparently relied heavily upon the number of enrollees in concluding that the alleged Village met the residency requirements (see, e.g., pp. 34-37, 67-72).

          In other cases where Mr. Fitzpatrick prepared similar eligibility reports for other villages under similar circumstances, the tribunals have found his investigations cursory and his reports misleading and of little probative value. See Alaska Conservation Society v. Village of Ayakulik, ANCAB VE 74-95, VE 74-104, VE 74-108 (Sept. 26, 1974), ALJ’s Recommended Decision, at 10; U.S. Forest Service v. Anton Larsen, Inc., ANCAB VE 74-20, VE 74-21, VE 74-36, VE 74-57, VE 74-62, VE 74-112 (October 3, 1974), ALJ’s Recommended Decision, at 16; Village of Litnik, supra, ALJ’s Recommended Decision, at 33-34; Natives of Afognak, Inc., supra, at 17-18; Alexander Creek, Inc., supra, ALJ’s Recommended Decision, at 32. Likewise, in the instant case, his investigation was cursory and his report is misleading and of little probative value.

          Second, based upon the testimony presented by Protestant, if Mr. Fitzpatrick had interviewed the 22 affiants and non-enrollee residents of Woody Island or Kodiak, he would have discovered that many of the statements contained in the affidavits are misleading or false, that nearly all of the Natives enrolled to Woody Island were not residents in 1970, and that, as of April 1, 1970, the island lacked a Native village, contained only a few habitable, non-FAA houses, and had far fewer than 25 Native residents. That testimony came from more than a dozen witnesses, including long-time Woody Island residents, Yule and Darrel Chaffin, and several Native residents of Kodiak (see, e.g., Exs. S-6A through S-6F, S-6I, S-6L, S-6N, S-6O; Tr. 93-106, 240-284, 291-325, 401-23, 451-573, 627-36, 643-676).

          For example, the form affidavits of Woody Island enrollees Karl Armstrong, Christina Hoen, and her daughters, Chrislyn Hoen and Cien Marie Hoen, all indicate that Woody Island was their “usual place of residence as of April, 1970.” They further state that Karl, Christina, Chrislyn, and Cien have lived there since 1963, 1948, 1969, and 1963, respectively. In fact, according to Christina Hoen’s own testimony, the Hoen’s, since 1956, merely lived there for weeks each summer, but resided in Kodiak for the vast majority of time each year, except 1964 (Ex. S-6F, pp. 15-27). Mr. Armstrong never lived or stayed overnight on Woody Island, according to the Chaffins (Exs. S-6A, p. 33; S-6B, p. 17). 2

          Similarly, the 15 identical form affidavits of Mary Chya and her family and Marie Redick and her family were shown to be false and misleading by the evidence adduced by Protestant. Each of those affidavits states the affiant lived on Woody Island for periods of time each year where “my residence consists of a 5 room house * * *.” (Ex. BIA-2A, pp. 101-87, 84-82). Contrary to the content thereof, Mary Chya admitted that neither she nor her family had a house on Woody Island or lived there for periods of time each year (Ex. S-6N, pp. 13-26). In fact, they lived in Kodiak and stayed overnight on Woody Island only two or three times over the many years they visited there (id., pp. 31-32). Marie Redick likewise admitted that she and her family lived in Kodiak and did not have a house on Woody Island, but she did allege that they stayed overnight on Woody Island every summer for periods lasting up to a week or two (Ex. S-6L, pp. 13-17, 23-24).

          By itself, the testimony from persons living on or frequenting Woody Island and Kodiak Island creates substantial doubt. That testimony presented by Protestant consists of the following:

          Yule Chaffin, Darrell Chaffin, and Patricia Hampton

          Yule and Darrell Chaffin were a married couple that lived on Woody Island full-time from 1945 until 1967, when they acquired a retirement home in California. Patricia is their daughter who lived with them from her birth in 1948 until she graduated from high school in 1966.

          From 1967 onward, with the exception of 1970, Yule and Darrell lived on Woody Island each year from mid-August to early May and in California during the rest of the year. In 1970 they lived on the island the whole year, except for the period of March 2nd through May 7th, when they were vacationing in Hawaii.

          From 1967 onward Patricia lived on Woody Island each summer for approximately 3 to 4 months. In 1970 she was there for the months of July, August, and possibly September. Each year from 1969 through 1971 she also visited her parents on the island at Christmas time.

          Because Darrell worked at the FAA facility on Woody Island, eventually becoming the Station Manager, he and his family lived in FAA housing until 1967, when Darrel retired and he and Yule moved into a cabin they had built above Una Lake on the west side of the island. They also had a large garden near Camp Woody on the west side.

          They could not see the dock from their cabin, but Darrell frequented the area near the dock to tend their garden and crab pots which he stored for crabbers for a fee. He also made daily trips to the dock while working for the FAA. He testified by deposition that he knew and had regular contact with all the Native residents of Woody Island.

          Yule has researched and authored numerous books and articles regarding the history of Woody Island and the Kodiak region. Her research included interviewing Ella Chabitnoy, who was a good friend whose family regularly interacted with the Chaffins. The Chaffins were also good friends with the Simeonoffs. Beginning in the 1950’s, Yule made daily entries in a diary detailing the activities on the island and the persons living there. Both Yule and Patricia testified by deposition that they regularly hiked all around the island and knew everyone who lived on Woody Island while they were living there.

          Patricia testified that there was no Native village, store, or church on Woody Island, that none of the Native homes were habitable in 1970, that she did not see Natives camping on Woody Island with any frequency in 1970, and that when she left in 1966, there were only 3 Native residents: Johnny Maliknak, Nick Pavloff, and Wilfred Pavloff. Consistent therewith, Yule testified that Johnny and Nick were the only residents left by 1967, as Wilfred drowned that year, and Darrell stated that there was only one habitable house in 1970.

          For the year 1970, Yule, Darrell, and Patricia each identified only 2 Native residents of Woody Island: Johnny Maliknak and Nick Pavloff, exclusive of any FAA families. The parties stipulated that if Yule were called to testify, she would testify that none of the enrollees to Woody Island, except Johnny and Nick, were residents of Woody Island in 1970. (Exs. S-6A, S-6B, S-6C, S-6O; Tr. 148-149, 168-69, 171-72, 192-93, 220, 225, 233-36, 1925-27)

          Richard Hensel

          He was on Woody Island almost daily during November and December of 1957, January of 1958, and the summer months of 1958 and 1959, conducting a study of snowshoe hares. He traveled most of the forested areas, but not the beach areas, on foot. During the 1960’s he flew over Woody Island regularly each year from the end of March through November. He visited many Native villages in the Kodiak archipelago and testified that there was no Native village on Woody Island. According to Mr. Hensel, Woody Island lacked a store, church, village council, and other typical indices of a village. The reliability of his observations are called into question by the fact that he observed only two Natives and one Native house, despite the fact that Protestant’s own evidence shows that there were many Native residents and homes at the end of the 1950’s. (Tr. 93-95, 100-01, 103-06, 114-18, 122-23, 125-32).

          James Harold Naughton

          From 1935 to 1996 he lived in Kodiak. He is of Native descent and served as the Kodiak postmaster from 1973 to 1977. Several times each year he visited his sister who lived in FAA housing on Woody Island until 1969.

          He has visited the Native villages of Old Harbor and Ouzinkie and opined that there was no Native village on Woody island from 1960 through 1970. He identified a couple dozen of the Woody Island enrollees to be residents of Kodiak in 1970 and stated that he never saw them on Woody Island. (Tr. 240-54, 261-63, 284)

          Edward Naughton

          He is a Native who was President of KANA from 1970 to 1973. With the exception of several years in the military and in college during the 1950’s, he has lived in Kodiak since 1935. In 1970 he visited Woody Island for only 2 or 3 days and thus would not have been aware of visitors to the island that year.

          He too identified a couple dozen of the Woody Island enrollees to be residents of Kodiak, and not Woody Island, in 1970. He interpreted a person’s residence to be where he or she spent the majority of their time and where he or she had a home.

          He spoke to several Leisnoi shareholders, including Thelma Johnson, who stated that they did not know why they were Leisnoi shareholders. He opined that there was no village on Woody Island and that Leisnoi fabricated Woody Island as a “bogus” village to obtain more benefits under ANCSA. (Tr. 291-94, 300, 305-13, 318-19, 323-25, 333)

          William Cordry

          He began working for the FAA and living on Woody Island in 1968. He hiked around the entire island. In 1969 he took over as the FAA operator of the FEDAIR IV. At the end of 1969, his wife, five children, and himself moved to Kodiak, but he continued to work for the FAA on Woody Island, commuting daily by FEDAIR IV from the dock.

          He did not remember seeing any Native dwellings on Woody Island and opined that there was not a Native village there. No Native children attended the school there when it closed in 1969. He too observed that numerous Woody Island enrollees were not residents of the island in 1970, but, rather, that most were residents of Kodiak.

          He did not see any Natives picnicking or fishing on Woody Island nor any regular Native activity of any kind. However, he would not necessarily have been aware of island visitors who came there on their own boats. (Tr. 401-02, 405, 411, 414-23, 431, 435, 438).

          Zelma Stone

          Her husband was employed from 1946 until September 1970 by the American Home Baptist Mission Society as administrator of the Kodiak Baptist Mission and in that capacity was required to check regularly on the Mission’s holdings on Woody Island, including a herd of cattle started in the late 1960’s. They lived on Kodiak Island during that time, but Zelma regularly visited Woody Island with her husband, including staying a week or two at a time each summer during the 1960’s while she worked at Camp Woody. They were good friends with Ella and Mike Chabitnoy.

          She has visited the villages of Larsen Bay, Karluk, and Ouzinkie and she testified that there was no village on Woody Island from 1946 to 1970. She elaborated that Woody Island lacked employment opportunities, a Native association or tribal government, and a church. She was not aware of any regular meetings or congregation of people on the west side. She was not aware of anyone living in the Harmon house on Site 17 from 1960 through 1970, in the Fadaoff/Madsen home on Site 23 during the last half of the 1960’s, or in the Chabitnoy house in 1970. She believed that only 8 to 10 Natives were living on Woody Island at the time of the 1964 earthquake and that Johnny Maliknak and Nick Pavloff were the only persons living on the west side in 1970.

          With regard to numerous Woody Island enrollees she stated that she had never seen them on Woody Island, that they never lived on Woody Island, that they were not living there in 1970, and/or that many were residents of Kodiak. (Tr. 451-59, 462-67, 480-86, 494, 498, 507. 509, 518-19, 524-26, 566-67; Ex. S-36).

          Terry Olivia Johnson

          From her birth in 1955 to 1971, she lived with her family in FAA housing on Woody Island. She does not remember any non-FAA children attending the Woody Island grade school during the early 1960’s. In approximately 1966 she began commuting daily to Kodiak via FEDAIR IV to go to school. She opined that there was no Native village on the west side.

          She explained that while she hiked or motorbiked all over the island in the summer, ran through vacant Native houses on the west side, and took the FEDAIR IV to school everyday, she saw only Johnny Maliknak, Nick Pavloff, and a couple of other Natives and rarely saw anyone living in the Native homes. She does not remember any Natives visiting, berrypicking, or camping there nor any skiffs tied up there, except those of Johnny, Nick, and the Chaffins. She identified several Woody Island enrollees as being residents of Kodiak.

          She and her family were the 6 Negroes listed on the 1970 census for Woody Island. (Tr. 627-39, 2026).

          James Payne

          He lived in Kodiak from April 1, 1970 to 1978. He came there to work on Woody Island as an FAA electronics technician. He began working during the first or second week of April. He commuted five days a week to Woody Island via FEDAIR IV. The Natives he observed riding FEDAIR IV were limited to Johnny Maliknak, Nick Pavloff, and Nick’s unidentified girlfriend.

          He did not see any boats pulled up on the beach or tied up off shore, nor did he see any Natives camping, hunting, fishing, or berrypicking. He opined that there was no Native village on Woody Island. (Tr. 643-46, 648-49, 654, 664-66, 669, 672)

          Waldeman Johnson

          He lived and worked on Woody Island as the FAA’s Station Administrator from November 1959 to 1971 and opined that he knew everyone that lived there. He too identified Johnny Maliknak and Nick Pavloff as the only Natives living or consistently returning to Woody Island in 1970. Of the persons submitting affidavits in support of Woody Island’s application, only Johnny, Nick, and Christina Hoen ever lived on Woody Island, according to Mr. Johnson. (Ex. S-6D)

          Tim Smith

          He was born in 1953 and lived in Ouzinkie from 1956 to 1977. Each summer during that period he lived at Camp Woody on Woody Island from the first or second week in June to mid-August, as his parents were involved in the creation and operation of Camp Woody. In 1970 he filmed various locations and activities on the island and a copy of that film was admitted into evidence (Ex. S-41).

          He testified that in 1970 the Chabitnoy and Fadaoff/Madsen houses were habitable but uninhabited, the condition of the Simeonoff house was poorer than that of the Chabitnoy house, the Harmon house was not standing, and no structures existed in the area of Sawmill Point. He remembered the Harmon house being abandoned and uninhabitable by the late 1950’s. He identified another structure in the Garden Beach area as having a bad roof, no windows, and an open door in the early to mid-1960’s. According to Mr. Smith, an open door is usually a sign of abandonment in Alaska, where wood structures deteriorate rapidly from exposure to the elements.

          The only Natives he saw on a regular basis on Woody Island were Nick Pavloff, Johnny Maliknak, and Rudy Sundberg Jr. He acknowledged that he might not have noticed a small group camping and did observe other persons from time to time, picking berries and using the beaches. He further observed that there were always people fishing in skiffs offshore. However, he did not know most of the Natives purported to be permanent residents of Woody Island in the Feichtinger Report.

          He stated that Nick and Johnny were the only consistent non-FAA residents and that they lived in the North Village area. The population of the South Village area was not consistent, with changing occupants and few or no occupants for many years.

          Mr. Smith, having regularly traveled to other Native villages with his parents to evangelize and teach vacation bible school, opined that Woody Island was not like the other villages. They were able to identify and establish relationships with the residents of each house in the other villages because the houses were consistently occupied for long periods of time by the same people. They could not do so on Woody Island because there was no consistent population other than Nick and Johnny. (Tr. 1928-29, 1931-32, 1944-46, 1949-50, 1957-61, 1980-83, 1986, 1993-96, 1998-2000, 2003, 2009-14)

          Shirley Berns

          She lived in Kodiak from May 1964 to 1976 and again from 1985 onward. As a 1970 census worker for the Government, she canvassed Woody Island in May 1970. While she listed eight persons as being “Native”, the category “Native” included anyone who was not “White” or “Negro”. She remembered encountering only one person who actually identified himself as being Native: Nick Pavloff.

          On the west side she observed a total of five houses, including only one inhabited house which was occupied by Nick Pavloff, the Chabitnoy house which was habitable, and three other houses which were uninhabitable. She identified numerous Woody Island enrollees to be residents of Kodiak in 1970. (Tr. 2024, 2028-30, 2032-34, 2040, 2046, 2049, 2058-61)

          Bill Torsen

          He operated FEDAIR IV from September 1962 to June 1966, while living in Ouzinkie. He testified that the FAA established a policy in 1963 that only FAA personnel, their families, and invited guests could ride on the FEDAIR IV. However, throughout Mr. Torsen’s tenure, non-FAA persons were allowed to ride FEDAIR IV if they were residents of Woody Island or if they obtained permission from the FAA station manager.

          Mr. Torsen moved to Kodiak in 1969 and lived there until 1980, when he moved to the State of Washington. Thereafter, he has resided in Kodiak each summer. He is of Native descent and is generally familiar with the Natives living in and around Kodiak.

          He testified that Johnny Maliknak and Nick Pavloff were the only Natives living on Woody Island in 1970. However, he seldom disembarked from FEDAIR IV on Woody Island and never visited any of the Native homes, so he would not have known how many adults or children were living in those houses.

          He identified numerous Woody Island enrollees as persons who resided in Kodiak in 1970, who resided in Kodiak from 1962 to 1966, whom he never saw on Woody Island, and/or whom he never saw on FEDAIR IV. He indicated that Woody Island had no stores, post office, or supplier of fuel in 1970. (Tr. 2062, 2064-2073, 2075-78, 2084, 2086)

          Gary Ennen

          He lived on Woody Island in FAA housing from 1965 to 1967 and commuted daily to Kodiak to attend high school. He hiked all over the island and did not observe any regular Native activity or Native village on Woody Island. He did not see anyone in the South Village area, but he did not pay much attention to that area. He did see weekend visitors to the island occasionally. (Tr. 2087-92, 2101, 2104).

          Cyril Hoen

          He is a non-Native who married Christina Simeonoff in approximately 1962. They are now divorced. His wife’s extended family loves Woody Island.

          Cy, Christina, and their children lived in Kodiak in the 1960’s and 1970, except for approximately eight months in 1964 when they lived on Woody Island in the Simeonoff house. They moved to Woody Island after the 1964 earthquake and tidal waves because Kodiak was a “mess”.

          When they lived on Woody Island, he worked in Kodiak for Sutliffs or Kodiak Commercial and commuted daily to work in a small boat. It was difficult to commute in the winter and easier to live in Kodiak, so they moved back.

          In late 1969 he opened a sporting goods store in Kodiak. Christina worked at times in a cannery and in the store.

          During the 1960’s and 1970 they visited Woody Island ten to twelve weekends per year and on “good” days for recreation, berrypicking, and rabbit hunting. They stayed in the Simeonoff house and did not stay for longer than a weekend.

          When they lived on Woody Island after the earthquake, their only relative who may still have been living on Woody Island was James Fadaoff. On Woody Island he also saw Edson Fadaoff sometimes, Rudy Sundberg Jr. quite often, and Maurice Harmon in 1970.

          (Tr. 2108-11, 2112-18, 2122-23, 2127, 2130, 2134-35, 2137)

          James Sandin

          His testimony is inconsequential.

          Lloyd Devoe Friend

          He has lived in Kodiak since February 1966. From 1968 onward he has made 2 or 3 rabbit hunting trips per year to Woody Island in October/November and January/February. He never saw any Natives in the South Village and did not notice any houses there other than the Fadaoff/Madsen house. He did see other rabbit hunters and a lot of people fishing in boats off the west shore of Woody Island. (Tr. 2384-86, 2390, 2392-95)

          Lenhart Goethe

          He has lived in Kodiak since 1963. He lived on Woody Island in a trailer by the dock for approximately six months immediately prior to the 1964 earthquake while he cleared an area for installation of the FAA’s VORTAC facilities. He returned in June 1964 to complete the project, staying 10 days at Camp Woody.

          He was assisted by Nick Pavloff, John Ponchene, James Fadaoff, and Wilfred Pavloff. He testified that Nick’s family was the only non-FAA Native family living on the island at that time. Both James Fadaoff and John Ponchene commuted from Kodiak, staying overnight on Woody Island only occasionally. With the exception of Rudy Sundberg Jr., Mr. Goethe saw no other Natives using the west side of the island. The several houses in the South Village were boarded up and not used, except occasionally by James Fadaoff and John Ponchene. Mr. Goethe did not visit the North Village. He opined that there was no Native village on Woody Island. (Tr. 2397, 2399-2403, 2406, 2410-12, 2415, 2418, 2420)

          Larry Dean Amox, Sr.

          His testimony relates to the credibility of Karl Armstrong.

          Edward Ward

          He was born in January 1953. He, his parents, and five siblings moved from the State of Washington to Kodiak in September 1965. His parents moved to Anchorage in 1977 and Edward moved to Homer in the late 1980’s.

          His father, Harold, his siblings, and himself are Woody Island enrollees, yet he testified that none of them ever lived on Woody Island. As of 1970, the family’s home was in Kodiak, where they lived, went to school, attended church, and received their mail and where his parents were registered to vote and licensed to drive.

          From 1969 to 1971 he visited Woody Island a couple of dozen times with friends to avoid chores at home, hunt rabbits, harass the cattle, and otherwise recreate. His younger sister, Kyra, also visited the island with him or her friends. Most of his visits were daytrips. His longest stay was two nights and three days.

          Edward is now the CEO and President of Leisnoi. He discussed Leisnoi’s attempts to repopulate Woody Island, including the expenditure of $200,000 to upgrade the FAA structures in 1977 and its shareholder homesite program begun in 1995 or 1996. (Tr. 2454-57, 2461-68, 2476, 2490, 2496-98, 2506-29; Ex. BIA-2B, pp. 11-10)

          Third, further doubt as to the validity of the residency presumption is cast by the enrollees’ responses to questions in their enrollment applications, as assembled in the Family List for the alleged Village. The Family List (Ex. BIA-2B, pp. 149-48) includes the names and entries of 264 of the 285 Natives listed in the certified Native Roll. The following is a breakdown of the responses given by those 264 persons:

          1) 262 persons listed Woody Island as the place of their permanent residence as of April 1, 1970, while 2 listed a place other than Woody Island;

          2) 10 persons listed Woody Island as the place where they resided for 2 or more years on April 1, 1970, while 116 listed Kodiak, 79 listed some other place, and 59 persons left the column blank or stated “at large”;

          3) 10 persons listed Woody Island as the place where they resided for an aggregate of 10 or more years, while 130 listed Kodiak, 48 listed some other place, and 75 persons left the column blank or stated “at large” (1 additional entry is illegible);

          4) 9 persons listed Woody Island as their birthplace, while 114 listed Kodiak, 129 listed some other place, and 11 persons left the column blank (1 additional entry is illegible);

          5) 58 persons listed Woody Island as the birthplace of an ancestor, while 91 listed Kodiak, 85 listed some other place, and 26 persons left the column blank (4 additional entries are illegible).

          Of the 264 enrollees listed in the Family List, only 10 persons listed it as the place where they resided for 2 or more years on April 1, 1970, and only 10 listed it as the place where they resided for an aggregate of 10 or more years. In contrast, Kodiak was listed by 116 enrollees as the place where they resided for 2 or more years on April 1, 1970; and by 130 enrollees as the place where they resided for an aggregate of 10 years. While such objective evidence is not necessarily inconsistent with individuals being permanent residents of the Village, Village of Kasaan, supra, at 23, it does cast some doubt on the validity of the presumption of residency based on the certified Native Roll.

          Additional doubt is generated by the identity of the persons who listed Woody Island as the place where they resided in their responses on their enrollment applications. The ten persons who listed Woody Island as the place where they resided for 2 or more years on April 1, 1970, are:

          Diane Carol Conaway (Ex. BIA-1A at 97)

          Jonna Christine Purcell (Ex. BIA-1A at 138)

          Alberta Ann Tibbetts (Ex. BIA-1A at 134)

          Vernon Byron Holland (Ex. BIA-1A at 133)

          Mary Thorsheim (Ex. BIA-1A at 90)

          John Harren Holland, Jr. (Ex. BIA-1A at 79)

          Walter Otto Kraft (Ex. BIA-1A at 74)

          Anna Nettie Blinn (Ex. BIA-1A at 73)

          Mary May Mack (Ex. BIA-1A at 73)

          Jay James Anderson (Ex. BIA-1A at 55)

          The ten persons who listed Woody Island as the place where they resided for an aggregate of 10 or more years are:

          Jonna Christine Purcell (Ex. BIA-1A at 138

          Alexandra Apple (Ex. BIA-1A at 134)

          Vernon Byron Holland (Ex. BIA-1A at 133)

          George Heitman, Sr. (Ex. BIA-1A at 127)

          Elizabeth Kirzel (Ex. BIA-1A at 123)

          Angeline Melaknek (Ex. BIA-1A at 118)

          Rayna Joyce Monroe (Ex. BIA-1A at 95)

          Walter Otto Kraft (Ex. BIA-1A at 74)

          Mary May Mack (Ex. BIA-1A at 73)

          John Harren Holland, Jr. (Ex. BIA-1A at 79)

Of those persons in the two lists above, only Angeline Melaknek (Maliknak) and Rayna Joyce Monroe were identified by any of Protestant’s witnesses as having actually lived on Woody Island.

          This casts doubt on the reliability of the certified Native Roll and the Native applicants’ own statements of the place of their permanent residence. Significantly, as previously mentioned, these statements generally were the only evidence upon which the Enrollment Coordinator relied in determining permanent residency for the Native Roll.

          Fourth, the sheer number of enrollees, 285, in relation to the actual evidence of sparse use and occupancy of the Woody Island from 1960 through 1970 strongly suggests that the roll for Woody Island is inflated with many persons who were not permanent residents of the island.

          Fifth, the validity of the presumption of residency is called into question by the 1970 census data for the entire island. The data provided to Mr. Fitzpatrick by the BIA shows only 1 of 41 residents of Woody Island in 1970 to be Native.

          Census data from a publication entitled “Selected 1970 Census Data for Alaska Communities” similarly shows Woody Island’s population to be 41 (Ex. S-18). It indicates that only a few more residents – 8 – were Native (Ex. S-18). Shirley Berns, the 1970 census taker for Woody Island explained that she included in the category of “Native” anyone who was not categorized as “Negro” or “White” and that she included only 1 person in the category of “Native” who was identified as Native (Tr. 2049, 2059).

          Sixth, many of the Village enrollees originally enrolled to another place and then applied to change their enrollment. ANCAB has held that such evidence can contribute to the establishment of substantial doubt as to the validity of the presumption of residency. Village of Litnik, supra, ALJ’s Recommended Decision, at 35-36; see also Village of Council, supra, ALJ’s Recommended Decision, at 14.

          Seventh, two studies raise further doubt as to the validity of the presumption. “Alaska Natives and the Land” (Ex. S-1), dated October 1968, is a publication commissioned by Congress in anticipation of ANCSA and subsequently adopted as an appendix to the Senate Report issued by the Senate Committee on Interior and Insular Affairs for Senate Bill 35. See Senate Report No. 92-405, 92nd Congress, 1st Session, pp. 73-74. Leisnoi is shown on a map of historic Native places and is listed as “abandoned” (Ex. S-1, pp. 249-50). Leisnoi or Woody Island is not included in two other maps, one of current places with Native population in the Kodiak region and one of places having a Native population of 25 or more (id., p. 251).

          “Villages in Alaska and other Places Having a Native Population of 25 or More”

          (Ex. S-2), dated 1967, is a compilation of villages and places having 25 or more persons, half or more of whom are Natives, as well as places which are predominantly non-Native but which have a Native population of at least 25. Woody Island or Leisnoi is not listed therein.

          In summary, Protestant produced ample evidence creating substantial doubt as to the validity of the presumption of residency for all of the 285 alleged Village enrollees, excepting Johnny Maliknak and Nick Pavloff. Numerous witnesses conceded that those two men were life-long residents of Woody Island. Therefore, the presumption disappears and the issue of whether the alleged Village had 25 or more residents on April 1, 1970, will be determined as if no presumption had ever been applicable for all but two of the enrollees.

d.

Did Protestant meet his burden of proving that the alleged Village did not have 25 or more Native residents as of April 1, 1970, and that less than 13 enrollees used the alleged Village during 1970 as a place where they actually lived for a period of time?

          Resolution of the issues in this case requires an examination of the evidence regarding individual’s use and occupancy of the alleged Village during the crucial time period from 1960 through 1970. Respondents argue that Protestant failed to meet his burden of proof regarding the issue of whether the alleged Village had 25 or more Native residents as of

          April 1, 1970, because, with respect to most of the individuals who enrolled to the alleged Village, he did not present specific evidence negating each’s subjective intent to return to the alleged Village.

          Contrary to Respondents’ assertions, such evidence is not required to meet Protestant’s burden of proof. Protestant rebutted the presumption of residency for the enrollees and met his ultimate burden of proof by showing that the alleged Village was abandoned. Where the evidence shows that only a few Natives lived in the alleged Village in 1970, that there was no frequent or consistent use of the alleged Village by others, and that the abandonment was not attributable to an act of God or governmental authority within the preceding 10 years, then the need for evidence specific to individuals arises, if at all, only to overcome any such evidence presented by the Respondents.

          Respondents and their anthropological experts simply placed too much emphasis upon any tie or connection a Native may have to Woody Island and any expression of desire to return or go to Woody Island. For instance, Mr. Wooley testified that an individual was placed upon Mr. Feichtinger’s list of 1970 permanent residents if he or she had an ancestor who lived on Woody Island and he or she expressed an intent to return there, or if he or she expressed an interest in or tie to Woody Island, visited the island for as little as part of one day, and expressed an intent to return there (Tr. 2297-98, 2340). Someone who has never been to the alleged Village or who has only used the land there for one day or a few days over a long period of time would not be a permanent resident of the alleged Village.

          Dr. Davis similarly focused upon a person’s ties or connections to Woody Island, stating that any descendant of a person who lived on Woody Island had sufficient ties to be classified as a permanent resident (Tr. 3631; see also Tr. 3444, 3448-49, 3490, 3506-07). She emphasized that the Natives’ society is matrilineal, in which individuals identify with the place where they were born (Tr. 3444, 3448-49). She testified that the South Village and North Village were clearly defined by kinship, with Ella Chabitnoy serving as the matriarch of the South and Angeline Maliknak being the matriarch of the North (Tr. 3458, 3479-83). She identified a third group or family to be those persons whose Native identity was tied to the Baptist Mission which once existed on Woody Island (Tr. 3483-85, 3508-09). She expressed her view that each of these three groups could have qualified separately as a village (Tr. 3633-35).

          When asked whether the alleged Village qualified as a Native village in 1970, she opined:

          It was a village in the sense of the continuity of identity and soul of shareholders * * *. It was a village in the sense that people were going back * * *.

          * * * * * * *

          It was a village in the sense that people chose to enroll [there]. There were people living there.

          * * * * * * *

          They have strong links and good memories.

(Tr. 3488-90).

          When asked if there was a sense of community among the enrollees, she referred to the many adoptions and tragic deaths of Natives who had lived on Woody Island and stated: “It, it’s amazing how much [of a sense of community was elicited during my interviews], given the fact of what had happened, a sense of community in the sense of an identity of soul on Woody.” (Tr. 3506) When asked to explain what she meant by “soul”, she responded that the Natives had fond memories of the island – a connection thereto (Tr. 3506-07). She continued:

          There wasn’t a sense of community that required a physical structure the way you and I would think about a town — or the way that we, that the Regs. were initially read in terms of a village with a store and that sort of thing. * * * I think the village of Woody Island goes beyond the boundaries of the island. * * * [I]t was the connection through family, regardless of where they were, that gave them the identity of Woody Islandness. * * * When I asked about their going to Woody, if they didn’t go to Woody, they sure as hell wanted to.

(Tr. 3507-08). She further noted that enrollees “kept the village going” by living, working, attending church, and socializing together in Kodiak or other places such as Anchorage

          (Tr. 3486-88, 3495-96).

          At all relevant times, the Village’s location, if any, did not exceed the boundaries of the North Village, South Village, and Garden Beach areas on Woody Island. Contrary to

          Dr. Davis’ testimony, Natives cannot keep a village going by communing elsewhere. Under ANCSA, any communing in Kodiak or elsewhere by Woody Island enrollees does not support the existence of a village at the location on Woody Island or their permanent residency at that location, but, rather, such communing supports a finding that each Native’s permanent residence is the place of communion.

          The problem with the approach of Respondents and their experts is that it deviates from the statutory, regulatory, and precedential guidance as to what constitutes a Native village and a permanent resident thereof. The statements or testimony of the Natives and

          Dr. Davis that the Natives’ have fond memories or a love of Woody Island and an intent to return do not establish permanent residency. As previously noted, the permanent residency of a Native cannot be established by fond memories. Many factors come into play, including the nature and extent of a Native’s activities in the various places where the Native dwells; the factors are not limited to the Native’s expressed intentions or mental attitude.

          Further, many of the expressions of intent to return to Woody Island did not evidence a continuing intent to return. The vast majority of potential permanent residents of Woody Island experienced an erosion of their Native cultural patterns and adopted non-Native customs, technology, and the like, including long-term residency in another place. They abandoned the alleged village and life-style associated with “home”.

          The weight of the evidence shows that, prior to 1970, nearly all of the potential permanent residents had become part of the modern cash economy, as Mr. Feichtinger acknowledged (Tr. 1376-78). They chose to live near employment, educational, and medical services or opportunities and intended to return to live on Woody Island, if at all, only if the island ever developed such services and opportunities or if their need for such things dissipated upon retirement or other happenstance.

          In other cases where a village was found eligible under ANCSA, despite the impacts of the modern cash economy upon a traditional subsistence existence, ANCAB emphasized that the Natives’ residency elsewhere for employment and educational purposes was temporary or seasonal and that the Natives continued to return to live in the village according to their Native family life-style on a frequent and continuous basis. See Village of Kasaan, supra, at 24; Village of Council, supra, at 25-26. For those one or two Natives who lived elsewhere for years at a time but were still found to be permanent residents of the village, ANCAB emphasized that they maintained homes in the village. Id.

          Unlike those cases, this case involves an alleged village to which the Natives did not continue to return to live both on a frequent and continuous basis and according to their Native family life-style. Nearly all of them returned, if at all, only discontinuously and/or infrequently. Further, nearly all did not return to live but merely to use the island (and not necessarily the alleged Village) on daytrips or very brief overnight stays. That use was often recreational in nature. Many Woody Island enrollees acknowledged that their use of the island was primarily, if not exclusively, recreational. The island was identified as an easily accessible, park-like place to “goof around”, “picnic”, and the like, only minutes away from Kodiak where a large number of the enrollees lived on a long-term basis. While there was evidence of use for gardening, hunting rabbits, seals, and octopus, fishing, harvesting shellfish, and gathering edibles, such as berries, most of the evidence of use for traditional or subsistence purposes during the decade ending in 1970 is vague as to the amount of such use and the extent of the Natives’ reliance upon such use to sustain themselves. Their daytrips or very short visits, often or exclusively for recreational purposes, was not in accordance with the traditional Native family life-style.

          Nor is the evidence of home ownership or maintenance on Woody Island very supportive of the alleged permanent residency of the Natives. One of the few Natives who owned or maintained a habitable house in 1970, Ella Chabitnoy, expressed to others the previous year that she did not intend to return to Woody Island because of bad memories and the absence of loved ones. She then sold her property containing two of the habitable houses, the Chabitnoy and Simeonoff houses, to non-Natives in 1971.

          With the exception of Christian Simeonoff Hoen and possibly Kelly Simeonoff, Jr., the Simeonoffs did not use the Simeonoff house with any frequency or consistency after the early 1960’s, despite often living in Kodiak in close proximity to Woody Island. Several of them enrolled to Uganik and were more involved in building and maintaining a home there. While Christina did pay the taxes on the home for some period of time, she testified that, as of 1970, it was not possible for her to return to Woody Island to live because of the lack of employment opportunities. Kelly Jr. testified that in 1970 he did not visit the island and it was not the center of his Native family life.

          None of the ostensible owners of the third and last habitable house in the South Village in 1970, the Fadaoffs, had stayed at the house with any frequency or continuity since 1965. Further, the house was allowed to deteriorate until it was barely habitable by 1970. A few years later they sold the house to Roy Madsen.

          In the North Village, the Sundberg house remained standing in 1970, but Esther Sundberg testified that she could not say if Woody Island was considered the center of the Sundberg’s family life in 1970 because the Sundberg’s were all living in Kodiak. A couple of the family members enrolled to the Village of Litnik, not the alleged Village. The only family member to visit Woody Island with any frequency in the late 1960’s and 1970 was Rudy Jr., but his permanent residence must be determined in accordance with that of his parents who were his guardians. Further, the land where the house sat until it collapsed in 1986 is now owned by the Kodiak Island Borough. None of the Sundbergs asserted a claim to the land or otherwise attempted to acquire property on Woody Island. The only permanent residents of the North Village in 1970 were Johnny Maliknak and Nicholas Pavloff, who occupied various houses there over the years.

          The cabin on Garden Beach used by Georgi Nekeferoff was not standing by 1970 and there is no good evidence of how often he used or maintained it. There are just vague references of his being on Woody Island or using the cabin when he was not living in the Kodiak jail.

          As previously mentioned, an expressed intent to return to a place is an important factor but not the only relevant factor. Further, an expression of subjective intent may be contradicted by objective evidence, and if that objective evidence is neither rebutted nor explained, it will clearly be persuasive. Natives of Afognak, Inc., supra, at 13.

          The breakdown of any significant evidence regarding individuals’ use and occupancy from 1960 through 1970 is set forth below. If an individual was identified in the Feichtinger Report as being a 1960’s resident and/or a 1970 resident of Woody Island, that fact is noted parenthetically following that person’s name. As noted by Mr. Feichtinger, the genealogy of nearly all of these individuals can be traced to one or more of six families “whose heritage lies with Woody Island Village.” (Ex. L-DOC-108, tab 3, p. 1, tab 4, p. 1) For each family, individual names are indented to reflect generational differences.

          Based upon that breakdown as well as the general evidence of use and occupancy of Woody Island, a conclusion is reached for each individual named below as to whether he or she was a permanent resident of the alleged Village on April 1, 1970. For each named individual a determination is also made as to whether he or she lived for a period of time in the alleged Village in 1970.

          THE PAVLOFF (a.k.a. PAVLOV) FAMILY: The Pavloff family descends from William E. Pavlov, the Vice-Governor of Alaska from 1858 to 1867. His son, Nicholai W. Pavloff, first took up residency at Woody Island in 1867 (id.). Their use and occupancy is as follows:

          1. Angeline Pananarioff Pestrikoff Pavlov Maliknak (dec’d: 1972; res: 1960’s)

          Her first husband was Larry Pestrikoff (dec’d: 1918). Her second husband was William N. Pavloff (dec’d: 1931), son of Nicholai W. Pavloff. Her third husband, Stephan Maliknak, died in a boating accident in 1958. She was the matriarch of the Pavloff, Maliknak, Frump, Ponchene, and Sundberg families and, until her death, was the owner, by inheritance, of the North Village unperfected homestead and homesites.

          She resided on Woody Island for over 50 years until she moved to a nursing home in Seward, Alaska, because of failing health. She moved in 1965 or 1966, just prior to the time that her house on the homestead burned down. Most of her family members had moved away prior to her move to Seward. She died in Seward in 1972.

          There is no evidence that she ever returned to Woody Island after moving to Seward. Nor is there testimony or other statements from Angeline as to whether she had a subjective intent to return to Woody Island on April 1, 1970. Mr. Feichtinger did not identify her as a 1970 resident of the alleged Village.

          She is enrolled to Woody Island and the Family List shows that she listed Woody Island as her permanent residence on April 1, 1970, and as the place where she resided for an aggregate of 10 years or more. It also lists Seward as the place where she resided for 2 or more years on April 1, 1970. (Tr. 2706, 2804; Exs. S-6Q, p. 13; S-6B, p. 12; L-DOC-96, -108, -122, -346; BIA-2B, pp. 118, 24).

          Angeline’s permanent residence was the alleged Village until 1965 or 1966. The objective evidence indicates that her permanent residence was Seward thereafter and that she did not live in the alleged Village for a period of time in 1970.

          2. Herman Ponchene (dec’d: 1973; res: 1960’s)

          He lived with Angeline on Woody Island as her common law husband from approximately 1958 until she moved to the nursing home in Seward in 1965 or 1966. There is no evidence of his whereabouts thereafter, except that he died on Woody Island in approximately 1973 and that numerous witnesses did not observe him as one of the persons using Woody Island in the late 1960’s and 1970. He did not enroll to Woody Island and no statement or testimony from him was introduced. The Feichtinger Report does not identify him as a 1970 resident. (Tr. 940, 944, 950, 1464-65; Ex. L-DOC-108).

          Herman’s permanent residence was the alleged Village from approximately 1958 until 1965 or 1966. His permanent residence was not the alleged Village thereafter and he did not live in the alleged Village for a period of time in 1970.

          3. Rudolph Sundberg, Sr. (dec’d: 1984; res: 1960’s, 1970)

          4. Jenny Pestrikoff Sundberg (dec’d: 1972)

          5. Esther Marie Sundberg Denato

          6. Lillian Sundberg Miller

          7. Janet Sundberg Grant

          8. Rudolph Sundberg, Jr. (res: 1960’s, 1970)

          9. Herman Sundberg (dec’d: 1992; res: 1970)

          10. Anita Sundberg Hartman (dec’d: 1998; res: 1970)

          Rudolph Sr. married Angeline’s daughter, Jenny Pestrikoff. Rudolph Jr., Herman, Anita, Esther, Lillian, and Janet are six of their children. Jenny, Rudy Jr., Anita, Lillian, and Janet are the only family members enrolled to the alleged Village. The Feichtinger Report lists only Rudy Sr. and Rudy Jr. as 1960’s residents and Rudy Sr., Rudy Jr., Herman, and Anita as 1970 residents.

          The family had a home on Woody Island in the North Village (the Sundberg homesite) in which they resided until 1943, at which time they moved to Kodiak for better access to schools, medical facilities, and employment opportunities. They lived in Seward from 1947 to 1950. Thereafter, according to Mr. Feichtinger, and continuing through the 1960’s, they resided in Kodiak but “frequented” Woody Island “periodically” or “”on a very regular basis.”

          After 1943 Rudy Sr. and Jenny stayed overnight on Woody Island at least twice, once in the mid-1960’s when Angeline became ill and once in the summer of 1970 when bad weather forced them to stay overnight after a picnic. Jenny was enrolled to Woody Island and died in 1972. She listed Woody Island as her permanent residence on April 1, 1970, but listed Kodiak as the place where she resided for two or more years on April 1, 1970, and for an aggregate of 10 or more years. Rudy Sr. was not enrolled to Woody Island and died in 1984.

          Jenny worked part-time in a cannery in Kodiak. Rudy Sr. was a fisherman and a boat builder. According to Mr. Feichtinger, Rudy Sr. went to Woody Island at “regular intervals” to fish during the 1960’s. Some witnesses testified to his presence on Woody Island in the 1960’s and others did not see him there, including some Natives. He kept a smokehouse there for the fish. He also fished elsewhere.

          In the case of Village of Litnik, the ALJ’s Recommended Decision notes numerous facts about Rudy Sr. and his daughter Esther. First, they and Esther’s six children are enrolled to the Village of Litnik. Second, they each signed an Affidavit on August 14, 1973, stating that Litnik was their permanent residence, that they lived for periods of time periodically and seasonally each year in Litnik, that their residence in Litnik consisted of a tent and campsite, and that they hunted, picnicked, fished, beachcombed, and cooked and salted fish there. Third, a long-time resident of Kodiak identified them as residents of Kodiak.

          According to Esther, she, Janet, Lillian, and Anita were all married and living with their families in Kodiak during the 1960’s, except for a brief period when Janet lived in Louisiana. They traveled “back and forth” to Woody Island to visit, picnic, pick berries, fish, and beachcomb. Esther identified Rudy Jr. as the only immediate family member who lived on Woody Island for any period of time during the 1960’s or 1970.

          In 1970 both Esther and her husband were employed in Kodiak. They and their children twice visited Woody Island that year. She testified that she considers Woody Island to be “home” and would like to return there to live when she retires. When asked whether the Sundberg family considered Woody Island to be the center of its family life in 1970, Esther responded that she could not say whether they did or not, as everyone was living in Kodiak.

          Prior to 1970, Janet and her family moved to Kenai, Alaska, where she lived until her death. Lillian moved to the lower-48 States in 1986. Each of them listed Woody Island as her permanent residence on April 1, 1970, but listed Kodiak as the place where she resided for two or more years on April 1, 1970, and for an aggregate of 10 or more years.

          Anita was born on September 19, 1937. According to her 1995 affidavit, she considers Woody Island to be “home” and she went there “regularly” in the “past”, but stopped going there in 1990 because of arthritis. She stated that she and her family went frequently to Woody Island in the 1960’s to visit her grandmother Angeline Maliknak, and to reminisce about old times. Her sister Esther believed that Anita visited Woody Island in 1970 to picnic and fish, and probably stayed overnight on the family fishing boat. The Family List shows that Anita identified Woody Island as her permanent residence on April 1, 1970, but identified Kodiak as the place where she lived for two or more years on April 1, 1970, and as the place where she resided for an aggregate of ten years or more.

          Rudy Jr. is developmentally disabled and his parents were his legal guardians until their deaths. From his birth in 1934 until 1941 he lived on Woody Island. He then lived in an institution in Oregon until 1960, when he returned to Alaska. Of the members of the Sundberg family, he used Woody Island the most during the 1960’s. He lived with his parents at their house in Kodiak but frequented and sometimes lived on Woody Island until the early 1970’s. Other than Nick Pavloff and Johnny Maliknak, he was the Native seen most often on Woody Island during the late 1960’s. He was also observed frequently on Woody Island by several witnesses in 1970. However, he was hospitalized in Valdez, Alaska, at least for part of 1970, as his sister Esther testified that he was hospitalized there in 1970 and Valdez is identified on the Family List as the place where he resided for two or more years on April 1, 1970. Woody Island is identified as his place of permanent residence on April 1, 1970, and Kodiak as the place where he resided for an aggregate of 10 years or more. KANA built a small house for him on Woody Island in 1972, but he has been an inpatient at the Kodiak Mental Health Center since the early 1970’s.

          Herman was born April 13, 1947. According to the Feichtinger Report, Herman “was brought up frequenting Woody Island” and “spent a great deal of time on Woody Island with his father, [including] the year of 1970.” Mr. Feichtinger testified that Herman “probably” lived on Woody Island in 1970. There is little evidence to support his conclusions regarding Herman’s activities in 1970.

          In fact, Esther testified that Herman was serving in the military in Vietnam in 1970. Upon his high school graduation in 1967 he joined the military and served for four years. Thereafter, he lived in Kodiak and then moved to Anchorage where he died. He was enrolled to the Natives of Kodiak. (Leisnoi’s Answering Brief, p. 172; Exs. L-DOC-73, -96, -108, 118, -122, -176, -180, -182, -346; BIA-2B, pp. 118, 114, 112-11,14; Tr. 245, 248-54, 305-10, 417, 419, 426, 944, 949-50, 1346-47, 1458, 1464, 1587, 1638, 1683-85, 1957, 2033, 2070-71, 2712, 2724, 2731, 2808, 2810, 2813-22, 2825, 2828-52).

          The objective evidence shows that none of the Sundbergs, except Rudy Jr., lived on Woody Island during the 1960’s or 1970. However, Rudy Jr.’s residency must be determined in accordance with his parents’ residency because they were his guardians during the decade ending in 1970.

          The Sundbergs all resided in Kodiak. There are only vague statements as to the frequency and consistency of their use of Woody Island, such as they went “back and forth” from Kodiak to Woody Island or they “frequented” or “periodically” used Woody Island. Other people in the area identified them as residents of Kodiak and did not identify them, except Rudy Jr., as frequent users of Woody Island during the decade ending in 1970.

          There is little to suggest that Woody Island, as opposed to Kodiak, was the center of their Native family life. Many years prior to 1960 they chose to live where opportunities for employment, schooling, and medical care existed. There is no evidence that they substantially relied upon Woody Island for subsistence needs after making that choice. There are only vague references to picking berries and fishing (which may have been recreational in nature) in addition to visiting, picnicking, and beachcombing there. Rudy Sr. apparently did catch and dry some fish for subsistence purposes, but he also did this elsewhere, including at Litnik, where he chose to enroll. Nor is there evidence of substantial social interaction on Woody Island in the 1960’s, especially after Angeline Maliknak left the island. Esther referenced only two trips there with her parents during the decade ending in 1970.

          Statements or testimony regarding any intent to return to Woody Island is limited to Esther’s testimony that she intends to return there when she retires and Anita’s statement in her affidavit that she considers Woody Island to be “home” and, if not for her health problems, she would return regularly as in the past to visit and reminisce. Esther’s testimony does not evidence an intent to return on April 1, 1970. Further, both she and Rudy Sr. enrolled to Litnik, and executed statements and affidavits in support of their enrollment there. Anita’s expressed intent to return to visit and reminisce is not sufficient to overcome the evidence that she was a permanent resident of Kodiak in 1970.

          The record shows that none of them were permanent residents of the alleged Village on April 1, 1970. It further shows that none of them, except Rudy Jr., lived for a period of time in the alleged Village in 1970.

          11. Natalie Ponchene (res: 1960’s)

          12. Johnny Ponchene

          They are the children of Florence Ponchene, who is the sister of Herman Ponchene. Neither Natalie nor Johnny are enrolled to Woody Island and no testimony or statements from either of them were introduced into evidence.

          Natalie was raised at the Kodiak Baptist Mission and the Ponchene family lived in Kodiak, not Woody Island. She cohabitated “on and off” with Johnny Maliknak on Woody Island for unspecified periods of time, including periods in the early 1960’s and in 1995. The Feichtinger Report lists her address to be a hotel in Kodiak and does not list her as a 1970 resident of Woody Island. A couple of witnesses observed a girlfriend of Johnny Maliknak’s with him on Woody Island in 1970, but none of them identified the girlfriend as being Natalie. No witness specifically identified her as having lived for a period of time on Woody Island or as having frequented it in 1970.

          Johnny Ponchene lived “on and off” with Nick and Mary Pavloff for unspecified periods of time in the early 1960’s. In 1963 and 1964 he commuted from Kodiak, staying overnight on Woody Island only occasionally, while he worked on clearing land for the FAA VORTAC site on Woody Island. The Feichtinger Report does not list him as a 1960’s resident or a 1970 resident of Woody Island. (Exs. L-DOC-108, -124, -125, -129, -176, -346; L-CHART-32; Tr. 485, 518-19, 567, 645, 940, 1464-65, 1685, 2397-2420).

          The weight of the evidence indicates that neither of them was a permanent resident of the alleged Village on April 1, 1970, and neither lived there for a period of time in 1970.

          13. Nicholas William Pavloff, Sr. (dec’d: 1978; res: 1960’s & 1970)

          He was the son of Angeline and William N. Pavloff and a lifelong resident of Woody Island. He lived in the Pavloff houses, the Frump home, and a house built for him by KANA. He was married twice, first to Christine Malutin and then to Mary Ponchene. Contrary to Protestant’s contentions, he is enrolled to Woody Island, as he is listed on the certified Native Roll with his last name misspelled as “Parloff” (Exs. S-6O, pp. 8-15; L-DOC-176; BIA-2B, pp. 158, 22).

          His permanent residence was the alleged Village on April 1, 1970, and he did live there for a period of time in 1970.

          14. Nicholas A. “Andy” Pavloff Jr. (Res: 1960’s & 1970)

          15. Betty Pavloff Lind (Res: 1970)

          Nicholas and Betty were born on November 18, 1953, and November 29, 1952, respectively, to Nicholas William Pavloff, Sr. and Christine Malutin. Neither Nicholas nor Betty are enrolled to Woody Island and no sworn statements or testimony from them were introduced. Unlike Leisnoi, Koniag does not contend that either of them were permanent residents of Woody Island in 1970.

          There is an unsworn interview of them in which Betty states that she never lived on Woody Island. Nicholas remembers living on Woody Island before his parents divorced in the late 1950’s.

          Thereafter, both Nicholas and Betty lived with their mother in Kodiak for approximately one year. During that year they visited their father at Woody Island on weekends. They then moved to Karluk where they were raised by their maternal grandparents, Herman and Tanya Malutin.

          Betty never returned to Woody Island. Nicholas returned to visit his father periodically through the 1960’s and 1970’s, including for two weeks every summer until approximately 1967. Mr. Feichtinger testified that Nicholas “was not in all likelihood there in 1970.” (Ex. L-DOC-161, p. 189, 242; Ex. L-DOC-168, pp. 5-6, 13-14; Tr. 955-56).

          Because they were both minors on April 1, 1970, their permanent residency shall be determined according to that of their maternal grandparents, and not according to that of their father or mother, because, during the decade ending in 1970, the minors lived with their grandparents who stood in loco parentis to the minors. The grandparents lived in Karluk. Neither their permanent residence nor that of the minors was the alleged Village on April 1, 1970. Further, neither Betty nor Nicholas lived there for a period of time in 1970.

          16. Mary Ponchene Fadaoff Pavloff (dec’d: 1965; res: 1960’s)

          17. William Nicholas Pavloff (dec’d: 1985; res: 1960’s)

          Mary is the niece of Herman Ponchene and became a Woody Island resident when she married Edson Fadaoff, Sr., who was the son of Ella and Nicholas Fadeef (Fadaoff). Mary and Edson had two sons, Edson Fadaoff, Jr., and Joseph Fadaoff. After Edson Sr. disappeared and was presumed drowned in 1958, she married Nicholas William Pavloff, Sr. They had one son, William Nicholas Pavloff, born in 1961.

          Mary, Nicholas, and the three boys lived on Woody Island, first in the Fadaoff/Madsen home at Site 23 and then in a home built by Nicholas near the beach in the North Village. Mary was diagnosed with cancer in approximately 1963 and she died of the disease in 1965.

          Thereafter, Edson Jr. and Joseph were adopted by Ellen and Frank Pagano. William briefly lived with the Richard Hartman family before being adopted and raised by an unnamed family in Anchorage. During his adolescence William visited his father on Woody Island several times, staying approximately two weeks on one occasion.

          Neither Mary nor William are enrolled to Woody Island. No statement from either of them was introduced into the record. (Exs. S-6A, p. 22; S-6B, pp. 14-15; S-6O, pp. 8-12, 16-17, 35; L-DOC-73, -79, -103, -108, -129, -346; Tr. 160-69, 218, 939, 941, 952).

          Mary was a permanent resident of Woody Island until her death in 1965. By reason of her death, she was not a permanent residence of the alleged Village in 1970 and did not live there for a period of time that year.

          Because William was a minor in 1970, his permanent residency shall be determined according to the permanent residence of his adoptive parents. His parents resided in Anchorage and there is no evidence that they were permanent residents of Woody Island in 1970. Consequently, William was not a permanent resident of the alleged Village on April 1, 1970, nor did he live there for a period of time in 1970.

          18. John (a.k.a. Johnny) Maliknak (res: 1960’s & 1970)

          He is the son of Angeline and Stephan Maliknak and has lived on Woody Island his entire life. His residences included the Frump house at Site 7 on Woody Island. He is enrolled to Woody Island. (Exs. S-6O, pp. 8-15; BIA-2B, p. 25).

          There is no dispute that his permanent residence throughout his lifetime, including on April 1, 1970, was in the area claimed to be the village of Woody Island. Nor is there any dispute that he lived in that area for a period of time in 1970. Protestant does dispute whether that area actually qualified as a “Native village” in 1970.

          19. William Wilfred Pavloff (dec’d: 1967; res: 1960’s)

          He was the son of Angeline and William N. Pavloff. With the exception of 6 years which he spent in the military, he lived on Woody Island from birth until his death by drowning in 1967. (Tr. 178, 218, 956; Ex. L-DOC-176).

          His permanent residence was the alleged Village from birth until death. By reason of his death in 1967, he was not a permanent resident of the alleged Village in 1970 and did not live there for a period of time in 1970.

          20. Agnes Pavloff Frump (dec’d: 1963; res: 1960’s)

          21. Robert Stretcher

          22. Virginia Frump Griffin

          23. Mary Anne King (res: 1960’s)

          24. Harold King (res: 1960’s)

          25. Brenda Pajurkin aka Frump (res: 1960’s)

          Agnes was the daughter of Angeline and William N. Pavloff and a lifelong resident of Woody Island until her death by drowning in 1963. At the time of her death she was in the process of moving to Uganik.

          She had five children: Robert, Virginia, Maryanne, Harold, and Brenda. Robert, Virginia, and Maryanne were born before 1950, Harold was born in 1950, and Brenda was born in 1955. Only Harold is enrolled to Woody Island. Neither Mr. Feichtinger nor Koniag lists any of them as residents of Woody Island on April 1, 1970.

          When infants/toddlers, both Robert and Virginia were adopted out of the family and raised outside the Kodiak area. The details of Robert’s adoption are not known. Virginia was adopted by a non-Native couple, Lucille and Walt Westman. They lived on Woody Island from 1946 to 1951 while Walt was employed by the FAA. They left the island immediately after adopting Ginny.

          Agnes and the three remaining children lived in the Frump home at Site 7 on Woody Island. Maryanne was a close friend of Trisha Chaffin, daughter of Yule Chaffin.

          In the fall of 1960 the three remaining children were placed in the Kodiak Baptist Mission, where they lived and received their education during the school year. Each summer until their mother died, they returned to Woody Island to live. Harold also commercially fished during those summers.

          Near the time of Agnes’ death, Brenda went to live with, but was not adopted by, the Miller family in Seward. Harold and Maryanne were adopted by, and went to live with, the King family in Seward shortly after Agnes’ death. All of them were then raised in Seward. Neither the Millers nor the Kings had any ties to Woody Island.

          Until he moved with his adoptive family to Idaho in 1969, Harold spent “a lot of time” “visiting” his uncles, Johnny Maliknak and Nicholas Pavloff, on Woody Island. Maryanne and Brenda may also have visited Woody Island. Harold did not return to Woody Island thereafter until a brief visit in the early 1990’s, at which time he spoke of trying to move back to Woody Island. In the 1990’s the siblings reunited and planned to visit Woody Island.

          (Exs. L-DOC-79, -96, -108, -122, -146, -346; Tr. 180, 509-11, 954, 1578-79, 1796-1814).

          None of them were permanent residents of the alleged Village on April 1, 1970. Nor did any of them live for a period of time in the alleged Village in 1970.

          26. Michle Pavloff

          He is the grandson of Nicholai W. Pavloff and the son of Peter Pavloff. He was born in 1930 on Woody Island. His parents died within a year of his birth so he was placed in the Baptist Mission orphanage on Woody Island. Little is known of his activities thereafter.

          He married Margie Tarver and they had four children, Mary Anna, Peter Nicholas, Tanya Alexandra, and William Everett, born in 1962, 1964, 1969, and 1971, respectively. Michle and the children are enrolled to Woody Island.

          The children were all born in California and the Family List shows that they all listed San Francisco, California, as the place where they resided for the two years ending April 1, 1970. Michle’s wife never visited Woody Island. Mary and Peter visited Woody Island for the first time in 1979, when Michle took them there to show them around. Nevertheless, the Family List identifies Woody Island as the place of permanent residence on April 1, 1970, for Michle and his children.

          The Feichtinger Report does not list Michle or his children as 1960’s residents or 1970 residents of Woody Island. Nor does Koniak identify Michle and his children as permanent residents in 1970. There is no sworn statement or testimony from any of them in the record. Mary stated in an unsworn interview that her father expressed a desire to return to Woody Island but did not do so because of the high cost of living and the lack of employment opportunities. (Exs. L-DOC-128; BIA-2B, pp. 126-25; BIA-2A, p. 125)

          Michle and his children clearly were not permanent residents of the alleged Village on April 1, 1970, nor did they live there for a period of time in 1970.

          THE FADAOFF FAMILY: The Fadaoff family traces back to Nicholas Fadeef (Fadaoff) and Fekla (Ella) Balamutoff/Kornilov, who were both placed in the Baptist Mission orphanage on Woody Island near the turn of the century. Nicholas became the chief of the alleged Village after his adoptive parent and first chief, Adrian Nanjack, died in the flu epidemic of 1918. Ella and Nicholas married and lived in the Chabitnoy house on Woody Island.

          27. Fekla “Ella” Balamutoff Kornilov Fadaoff Chabitnoy (dec’d: 1971; res: 1960’s)

          Shortly after her first husband, Nicholas Fadaoff, died in 1935, she married Mike Chabitnoy, another Mission-raised person. He died in 1958. Ella died in December 1971.

          In March of 1964 Ella received a patent to the land encompassing the Chabitnoy, Simeonoff, and Harmon houses (U.S. Survey 3630). In May 1971, shortly before her death, she sold the land to a non-Native couple, Fred and Ruth Brechan, for $2,500.

          She is not enrolled to Woody Island. The Feichtinger Report lists her as a 1960’s resident of Woody Island but not as a 1970 resident. Nor does Koniag list her as a permanent resident in 1970.

 

          She lived on Woody Island from approximately 1895 until she moved to Kodiak in the early 1960’s prior to the 1964 earthquake. She moved to have better access to medical services because of her failing health and to be near her son Cecil Chabitnoy who acquired a job at the Naval base outside of Kodiak.

          Thereafter, she lived for periods of time in the summertime on Woody Island in the South Village until she grew too old to do so. Also, the island became too lonely for her, as her loved ones died or left the island: her husband and one of her sons, Edison Fadaoff, Sr., died in 1958 and her other four sons left during the early 1960’s.

          Ella’s granddaughter, Christina Hoen, testified that Ella told her in 1969 that she did not want to live on Woody Island again because of her memories of her son, James Fadaoff, who committed suicide that year while imprisoned for killing his common law wife, Rosemary Chilliak. Christina hypothesized that her grandmother’s primary reason for selling her land to non-Natives in 1971 was her son’s suicide and possibly one other death in the family (a possible reference to the death of Ella’s grandson Danny Harmon in 1967). (Exs. L-DOC-1, -55, -346, -347, -351; S-6A, p. 31; S-6B, p. 5; S-6D, pp. 6-7; S-6O, pp. 19-20, 34;

          Tr. 461, 528-29, 971, 2888-89, 3003-04).

          Ella was a permanent resident of the alleged Village at least until she moved to Kodiak in the early 1960’s. However, by April 1, 1970, she clearly was not a permanent resident of the alleged Village. She was residing in Kodiak and did not intend to return to Woody Island because of deaths in the family, the absence of loved ones on the island, and the effects of aging and ill health. She did not live for a period of time in the alleged Village in 1970.

          28. Michle “Mickey” Chabitnoy (res: 1960’s)

          29. Cecil Chabitnoy (res: 1960’s, 1970)

          They are the sons of Mike and Ella Chabitnoy. They were raised on Woody Island. Neither of them are enrolled to Woody Island.

          No testimony or statements from Mickey were introduced. Neither Koniag nor Mr. Feichtinger identify him as a permanent resident of Woody Island in 1970.

          He joined the Navy in the approximately 1956 and suffered a brain injury during a stop in New York City in 1960. He returned to Woody Island where he lived until he was institutionalized in Oregon in 1963 or 1964. He lived with his mother and Cecil in the Chabitnoy house until they moved to Kodiak.

          Cecil and his mother moved to Kodiak sometime prior to the 1964 earthquake, with Cecil accepting a job at the Naval base on the outskirts of Kodiak. According to Mr. Feichtinger, Cecil lived on Woody Island thereafter “periodically” for “various periods of time” until his death on Woody Island in 1995. He was still living in Kodiak when he died. There is supporting evidence that he spent time on Woody Island after the earthquake, including during 1969 and 1970, but that evidence is very vague as to the nature and extent of his usage of the island. In 1970 Cecil was not living on Woody Island, according to Zelma Stone.

          Cecil did not testify but did execute an affidavit. He stated in pertinent part, “Woody Island has been my home since birth. My family and cultural ties are all there. I still periodically go to Woody Island to live. My family has a long history there and my culture is linked to Woody Island Village.” (Leisnoi’s Answering Brief, p. 172; Exs. L-DOC-73, -346; S-6D, pp. 8-11; S-6O, pp. 19-20, 34; Tr. 461, 465, 972-73, 1638).

          Neither of them was a permanent resident of the alleged Village on April 1, 1970, nor did either live there for a period of time in 1970. Mickey has been institutionalized since 1963 or 1964.

          Cecil had moved to Kodiak for work in 1964. The evidence of Cecil’s use is generally limited to vague statements that he spent time or lived on Woody Island periodically. For instance, Kelly Simeonoff Jr. stated in an affidavit that Cecil lived on Woody Island after Kelly was released from the military in January 1964, but the extent of his residency was vaguely described as “at various times.” (Ex. L-DOC-346)

          This vague evidence is juxtaposed against the voluminous evidence that the only Natives who lived in the alleged Village with any frequency or continuity after 1966 were William Wilfred Pavloff until he died in 1967, Johnny Maliknak, Nicholas Pavloff, and possibly Rudy Sundberg Jr. and Christina Hoen. Cecil’s own half-sister, Natalie Simeonoff, stated in an interview that the island became too lonely for their mother in the 1960’s because her loved ones, including Cecil, had left the island.

          While an affidavit from Cecil was submitted, the affidavit provides very little detail regarding his alleged “periodic” residency on Woody Island, either as to duration, time periods, or activities. Nor does it explain why Cecil did not enroll to Woody Island or why he generally lived in Kodiak rather than Woody Island.

          30. Simeon “Buddy” Fadaoff (dec’d: 1993; res: 1960’s, 1970)

          He was the son of Nicholas and Ella Fadaoff. He lived on Woody Island from his birth in 1930 until the late 1950’s or early 1960’s, when he married and moved to the State of Washington. Thereafter, he was observed on Woody Island only once during the decade ending in 1970. That visit took place in 1969. The Feichtinger Report states that he visited Woody Island in 1970, but there is no supporting evidence for this statement..

          He did not enroll to Woody Island. No testimony or statement from him was introduced. Koniag does not list him as a permanent resident of Woody Island in 1970.

          (Tr. 985; Exs. L-DOC-125, -346)

          He was not a permanent resident of the alleged Village in 1970, nor did he live there for a period of time in 1970.

          31. James O. Fadaoff (dec’d: 1969; res: 1960’s)

          He was the son of Nicholas and Ella Fadaoff. He lived on Woody Island – mostly in the Chabitnoy house – from birth until he was arrested shortly after he killed Rosemary Challiak, his common law wife, on December 26, 1965. He pled guilty to manslaughter and died in prison in 1969. He was the last full-time resident of the Chabitnoy house. (Tr. 957, 960, 966-67: Exs. S-6O, p. 34, L-DOC-73, and L-DOC-117; Armstrong Depo., pp. 68-69).

          Obviously, his death in 1969 precludes him from being a permanent resident of the alleged Village in 1970 or from having lived there for a period of time in 1970.

          32. Rosemary Challiak (dec’d: 1965; res: 1960’s)

          She was killed by her common law husband, James Fadaoff, on December 26, 1965. It is unclear how long she lived with James prior to her death.

          Obviously, her death in 1965 precludes her from being a permanent resident of the alleged Village in 1970 or from having lived there for a period of time in 1970.

          33. John Michael Waller (res: 1970)

          He is enrolled to Woody Island. Statements from him were introduced via live testimony and by affidavit. He listed Woody Island as his permanent residence on April 1, 1970, but listed Kodiak as the place where he resided for two or more years on April 1, 1970, and as the place where he resided for an aggregate of 10 or more years.

          He was born in 1947 to Eugene Litz and Marjorie Fadaoff, who was the daughter of Nicholas and Ella Fadaoff. His mother was raised at the Woody Island Baptist Mission.

          As a baby he was adopted by John and Opal Waller, non-Natives, and raised at the Naval base on Kodiak Island until 1961, when the Waller’s moved to Kodiak City. He did not discover the identity of his natural parents until after 1970.

          From 1962 to 1966 he made “frequent” trips with friends to Woody Island and other islands for recreational hunting and gathering, beachcombing, exploring, and camping. The nearby islands were his “playground.” In 1966 he graduated from high school and began attending college, first in the State of Washington and then in the State of Oregon. He visited Woody Island during the summers, including the summer of 1970. After graduating from college in 1971, he returned to Kodiak to live. Several witnesses testified that they had never seen him on Woody Island and that he was a resident of Kodiak.

          He has served as the President and a Director of Leisnoi. He testified that he would like to go back to Woody Island and identified a homesite in the former FAA housing area in which he would choose to reside. (Exs. L-DOC-419; BIA-2B, p. 11; Tr. 186, 246, 305-10, 3127-32, 3136, 3141-46 ).

          The evidence shows that Woody Island and other islands were merely his playground in his adolescence. It does not establish that the alleged Village was the center of his family life, Native or otherwise, at any time during the decade ending in 1970. He never lived there or engaged in subsistence activities of any significance. The alleged Village was not his permanent residence on April 1, 1970, and he did not live there for a period of time in 1970.

          34. Natalie Fadaoff Simeonoff (dec’d: 1992; res: 1960’s)

          35. Kelly Simeonoff, Sr. (dec’d: 1997; res: 1960’s)

          36. Ellen Mae Pagano

          37. Edson Nicholas Fadaoff, Jr. (res: 1960’s)

          38. Joseph Francis Fadaoff (res: 1960’s)

          39. Peter Simeonoff (dec’d: 1973; res: 1960’s)

          40. Freddy Simeonoff (dec’d: 1970; res: 1960’s)

          41. Kelly Simeonoff, Jr. (res: 1960’s)

          42. Christina Simeonoff Hoen (res: 1960’s, 1970)

          43. Cien Marie Hoen Weeks (res: 1960’s, 1970)

          44. Chrislyn Kay Hoen (res: 1960’s, 1970)

          Freddy is not enrolled anywhere, as he was killed during the Viet Nam War in April 1970. Natalie, Kelly Sr., and Peter are enrolled to Uganik and Ellen, Edson Jr., Joseph, Kelly Jr., Christina, Cien, and Chrislyn originally enrolled “at large” but then changed their enrollment to Woody Island. Joseph is not sure why he enrolled to Woody Island.

          Natalie was the daughter of Nicholas and Ella Fadaoff. In the 1930’s, she married Kelly Sr. and they built a house near the Chabitnoy house in the South Village in approximately 1942. That house is referred to as the Simeonoff house. In 1946 they bought a home in Kodiak. Ellen, Peter, Freddy, Kelly Jr., and Christina are some of their children.

          The family moved back and forth between Kodiak and Woody Island in accordance with the availability of employment and schooling until the early 1960’s, living primarily on Woody Island from 1943 to 1956. Natalie, Kelly Sr., Freddy, and Peter also lived primarily on Woody Island for a year or two in the early 1960’s.

          Prior to the 1964 earthquake Natalie and Kelly Sr. moved to Uganik, where they lived each summer and two or three months of each winter until approximately 1975. They spent three or four months of each winter in Kodiak. Their children remained in Kodiak, although Peter eventually began living with them most of the time both in Uganik and Kodiak.

          After the earthquake no family gatherings, whether for birthdays, Christmas, or Easter, were held on Woody Island. They did leave a piano and furniture in their home on Woody Island, and the evidence is conflicting as to whether that furniture remained there through 1970. In the 1960’s, Natalie and Kelly Sr. purportedly “regularly visited” Woody Island and stayed for “extended periods of time.”

          However, Natalie stated in an interview that they gradually stopped going there, except “once in a while,” in the 1960’s because it was too lonely there for her mother Ella Chabitnoy after Ella’s husband (Mike Chabitnoy) died and Ella’s sons (Buddy Fadaoff, James Fadaoff, Cecil Chabitnoy, and Mickey Chabitnoy) left the island. Mike died in 1958, Buddy and Cecil left before 1964 earthquake, Mickey left in 1963 or 1964, and James left in 1965. In 1973 the visits of Kelly Sr. and Natalie to Woody Island tapered off because they bought property and began establishing a home in Bell Flats.

          In Uganik, Kelly Sr. worked as a winter watchman for a cannery and fished in the summers. Natalie and Kelly established a garden and built a house there where their children would visit them at Christmas and during the summer. Natalie originally enrolled to Kodiak and then changed her enrollment to Uganik. In the case of Alaska Conservation Society v. Village of Uganik, ANCAB VE 74-99, VE 74-105, VE 74-109 (October 21, 1974), ALJ’s Recommended Decision, at 20-23, 26-28, Natalie testified, Kelly Sr. concurred, and both the Administrative Law Judge and ANCAB found that Natalie, Kelly Sr., and Peter were permanent residents of Uganik as of April 1, 1970.

          Ellen married Frank Pagano. They adopted and raised Edison Jr. and Joseph after the death of their mother, Mary Ponchene, in 1965. Their father, Edison Nicholas Fadaoff, Sr., who was the son of Nicholas and Ella Fadaoff, had disappeared in approximately 1958 and was presumed drowned. Edison Jr., born December 18, 1956, and Joseph, born August 31, 1954, lived with Mary on Woody Island until 1965.

          The Pagano family lived in Kodiak until the mid-1960’s, when they moved to Anchorage because Frank obtained a better job there. While living in Anchorage, they would “vacation” in Kodiak or Woody Island in the summer. They visited Woody Island “occasionally”, mostly for daytrips, staying a few hours at least one day each year. They did not occupy a house there in 1970. Frank, Ellen, Edson Jr., and Joseph all listed Woody Island as their permanent residence on April 1, 1970, but listed Anchorage as the place where they resided for two or more years on April 1, 1970, and Kodiak as the place where they resided for an aggregate of 10 or more years.

          Kelly Jr. joined the military in 1958. He returned for three months but could not find work so he rejoined. In approximately January 1964 he finished his military career and returned to the Kodiak area. Upon his return, he went to work in Kodiak and he and Peter engaged in subsistence activities and visited their grandmother Ella on Woody Island. They also engaged in subsistence activities elsewhere, such as Uganik.

          Kelly Jr. purportedly “frequented” Woody Island. In the summers he spent time there tending cattle and the family’s garden. He left clothing and modeling supplies there as evidence of his intent to return, and considered Woody Island to be “home”.

          However, he also testified that, in 1970, he did not go to Woody Island and it was not the center of his Native family life. That year he traveled between and lived in Kodiak and Anchorage while he looked for work. In the early 1970’s, he went to work for Krafts’ Men’s Department, married, and began raising children in Anchorage, where he stayed for 23 years. He now lives in Kodiak. He listed Woody Island as his permanent residence on April 1, 1970, but listed Anchorage as the place where he resided for two or more years on April 1, 1970, and Kodiak as the place where he resided for an aggregate of 10 or more years.

          He gave up his dream of living on Woody Island when he began raising children because it was impractical to live there. He explained that most people had moved away from Woody Island by the late 1960’s to be closer to medical services, schools, and employment opportunities. He stated that employment choices played a huge role in determining where Natives chose to live.

          Freddy, born in 1949, was killed in Vietnam in April 1970. Prior to joining the military, Freddy lived with his parents when he was not attending school in Sitka, Alaska.

          Peter loved Woody Island and spent a “great deal of time” there. However, he also found that it was impractical to live there because it was not safe to travel to and from Woody Island by skiff to access medical care for his children. The weather would not permit it. In 1970 he was living in Uganik. Neither Mr. Feichtinger nor Koniag included Peter in their lists of permanent residents of Woody Island in 1970. He died in 1973.

          Christina married in 1962 and had two daughters, Cien, born November 28, 1963, and Chrislyn, born May 4, 1969. From 1956 onward, Christina resided in Kodiak, excepting that she stated by deposition and unsworn interview that she used the Simeonoff home on Woody Island as follows: (1) she spent each summer there from 1956 through 1961, (2) she spent less time there in 1962 and 1963 because her husband was in the Navy, (3) she and her family lived there from May 1964 until December 1964, and (4) she and her children lived there each summer from 1965 to 1973, including 8 or 9 weeks in 1970.

          In May 1969 she and her husband began operating a sporting goods store in Kodiak. She clarified in live testimony that she and the children did not live 8 or 9 weeks on Woody Island in 1970, but merely spent weekends and some evenings there because she and her husband were busy operating the store. Her husband testified that their visits were limited to 10 or 12 weekends per year and some “good” days, not just in 1970 but throughout the decade ending in 1970. He added that they went there for recreation, picking berries, and rabbit hunting and did not stay longer than a weekend at one time.

          She stated in an affidavit that they intended to stay on Woody Island permanently in 1964, but ceased living there primarily because the Simeonoff house no longer had running water. She elaborated that the water pipeline damage forced them to carry water from the Upper Lake, which they found too burdensome for their young family.

          In a deposition, however, she dismissed as “no big situation” the difficulty of living on Woody Island at that time with an “erratic” water supply, because “there are quite a few wells and springs over there that have been there for years and a good supply of fresh water.” Her husband testified that they moved back to Kodiak because it was too difficult to commute from Woody Island to his job in Kodiak and because it was “easier” to live in Kodiak. Christina confirmed the difficulty of the commute, stating that her husband often stayed overnight in Kodiak to avoid the commute.

          She further testified that she considers Woody Island to be home, but that, in 1970, it was not possible for her to return to Woody Island to live because of the lack of employment opportunities. She would return to Woody Island to live if the circumstances were right, i.e., if their employment and earnings were such that it was feasible and affordable to do so.

          She paid taxes on the Simeonoff home and offered her mother $15,000 to purchase her land on Woody Island before she sold it to the Brechan’s for $2,500. Christina and her children listed Woody Island as her permanent residence on April 1, 1970 and Kodiak as the place where they resided for two or more years on April 1, 1970. Christina also listed Kodiak as the place where she resided for an aggregate of 10 or more years. (Village of Uganik, supra, ALJ’s Recommended Decision, at 20-23, 26-28; Exs. L-DOC-1, -129, -332 -346, -347, -350, -351, -A17; S-6O, p. 76, 91, 103; S-6F, pp. 15-27, 30, 33-35; S-6D, pp. 15, 17; BIA-2B, pp. 122, 102-00, 33, 29, 22, 15; Tr. 247, 980-83, 1046-47, 1066-75, 1084, 1090, 2108-37, 2695-96, 2944, 2964, 2977, 2981, 2985-93, 2997-99).

          In the Village of Uganik case, Natalie, Kelly Sr., and Peter were found to be permanent residents of that village on April 1, 1970. The evidence presented in this case does not lead to a different conclusion. Further, they did not live for a period of time in the alleged Village in 1970.

          While Respondents do not allege that Freddy was a permanent resident on April 1, 1970, he conceivably could have been one because he did not die in battle until later that month. However, he died at age 21 and had not established a residence independent of his parents prior to entering the military. Consequently, his permanent resident is determined according to that of his parents and therefore he was not a permanent resident of the alleged Village on April 1, 1970.

          Edison Jr. and Joseph were minors on April 1, 1970. Consequently, their permanent residence is determined according to that of their adoptive parents, Ellen and Frank Pagano.

          After the Pagano’s moved to Anchorage in the mid-1960’s, there is no evidence that the they visited Woody Island with any frequency or consistency, that they used it for subsistence purposes, or that they lived there at all. They did not maintain a house there; they lived and worked in Anchorage and merely vacationed at Woody Island occasionally on daytrips. They were not permanent residents of Woody Island on April 1, 1970, and did not live there for a period of time in 1970.

          Kelly Jr. made some use of Woody Island and the Simeonoff house there during the 1960’s. However, he testified that in 1970 he did not visit there nor consider it the center of his Native family life, as he was living in Anchorage and Kodiak while he focused upon finding employment. Like so many other Natives, his fondness for Woody Island was overridden by a desire to be gainfully employed in the modern cash economy. He was not a permanent resident of the alleged Village on April 1, 1970, and he did not live there for a period of time in 1970.

          The permanent residency of Christina is the most difficult to determine. She lived there in 1964 and clearly spent considerable time at the Simeonoff house each summer thereafter until 1973. She maintained the garden there, paid the taxes on the home, and attempted to buy the land from her grandmother. Nevertheless, her own testimony reveals that she abandoned by 1970 the continuing intent to return to Woody Island to live. By that time she was willing to return to Woody Island to live only if the circumstances were right, i.e., if her family’s employment and earnings were such that it was feasible and affordable to do so. Her lack of a continuing intent to return to the alleged Village is further evidenced by the efforts of herself and her husband to establish a home in Bell Flats rather than on Woody Island, beginning in 1973. Consequently, she was not a permanent resident of the alleged Village on April 1, 1970.

          Because her children, Cien and Chrislyn, were minors on April 1, 1970, their permanent resident is determined according to that of their parents. Consequently, their permanent residence was not the alleged Village on April 1, 1970.

          45. Anastasia “Nettie” Fadaoff Harmon Hartle (dec’d: 1976; res: 1960’s)

          46. James Gane Harmon Hartle (res: 1960’s, 1970)

          Anastasia was the daughter of Nicholas and Ella Fadaoff. She was born and raised on Woody Island. She first married Raymond Royal Harmon, who died in a boating accident in the 1940’s. Her second marriage was to Ernie Hartle, a commercial fisherman. She died in 1976.

          She and her family lived in the Harmon house from 1952 until approximately 1959, when they moved to Kodiak. In approximately 1961, Ernie, Anastasia, and her youngest son, James Gane Harmon Hartle, born December 25, 1952, moved to the State of Washington because Ernie accepted employment there. They remained in Washington, except for the following periods when they returned to Kodiak to live. First, several months after the 1964 earthquake they returned and stayed until May or June of 1965. Second, in 1968 they returned for an unspecified length of time. That year was the last year that Ernie fished commercially. He then worked for a cedar mill in Washington. Third, James alone returned in 1970 for commercial salmon fishing.

          During their stays in Kodiak, they did “frequent[] Woody Island many times,” including living in the Fadaoff/Madsen house during the summer of 1964. After 1964, Anastasia and Ernie never returned to Woody Island to live.

          During the summers of both 1968 and 1970, James fished commercially with his half-brother Paul Harmon on the boat named “Banshee”. They obtained their food and supplies in Kodiak, but sometimes on the weekends they camped or slept on their boat at Woody Island. James testified that he did this “several” times during 1970. Paul testified that they did so at least 4 or 5 times that year to “goof off”, swim, and visit their brother Daniel’s grave. James referred to Woody Island as “home” and testified that he wanted to return from Washington to Woody Island to live but did not do so because of a lack of employment opportunities on Woody Island.

          No testimony or statement from Anastasia was introduced. James Hartle testified that his parents told him that they would like to have moved back to Woody Island. Conversely, Patricia Hampton and Yule Chaffin related hearsay statements that Anastasia and Ernie did not intend to return to Woody Island to live because of the lack of employment opportunities.

          Both James and Anastasia are enrolled to Woody Island. The Family List gives the same address in Amanda Park, Washington for both James and Anastasia. James lived with Anastasia throughout the 1960’s and 1970. James listed Amanda Park in response to the question of where he resided for two or more years on April 1, 1970, while Anastasia gave no response. James also listed Amanda Park as the place where he resided for an aggregate of 10 or more years; Anastasia listed Kodiak. Anastasia listed Woody Island as her permanent residence on April 1, 1970. (Tr. 973-76, 1628-29, 1642-43, 1649, 1652-58; Exs. L-DOC-124, -125, -385, p. 7,060; BIA-2B, pp. 96, 30)

          Because James was a minor on April 1, 1970, his permanent residence is determined according to that of his parents. His parents did not return to Woody Island to live after the summer of 1964. They lived and worked in the State of Washington and did not even visit the island frequently or consistently. Evidence of their subjective intent to return is conflicting, and the objective evidence is strongly supportive of a finding that they were not permanent residents of the alleged Village on April 1, 1970.

          Nor did Anastasia or James live there for a period of time in the alleged Village in 1970. After 1964 Anastasia never returned there to live. James camped there primarily for recreation only a half-dozen times in 1970, staying on his boat at least one of those occasions.

          47. Daniel L. Harmon (res: 1960’s)

          48. Paul R. Harmon (res: 1960’s, 1970)

          49. Maurice W. Harmon (res: 1960’s, 1970)

          50. Rayna Joyce Harmon Lohse Monroe Austerhouse (res: 1960’s)

          51. Leanna Ellen Harmon King Castillo (res: 1960’s)

          They are the children of Anastasia and Raymond Harmon. The family lived on Woody Island – mostly in the Harmon house – from 1950 through approximately 1959.

          All of the males joined the military. Daniel joined in 1962 or 1963, was killed in the Viet Nam War in 1967, and is buried on Woody Island where he had hoped to build a house someday, according to his brother Maurice.

          Maurice enlisted in 1959 and returned in 1961. He then lived on Woody Island for a few months before moving to Kodiak where employment was available. He was in the National Guard during the 1964 earthquake. After his release from the Guard, he lived in the Chabitnoy house with James Fadaoff for a couple of months. He moved back and forth between Kodiak and Woody Island several times.

          After 1964, Maurice stayed overnight at Woody Island for only 2 or 3 nights. Those overnight stays occurred in 1970 while he overhauled seine. In 1970 he also made two or three daytrips there to visit Daniel’s grave, but he did not live there. Mr. Feichtinger’s vague statement that Maurice spent a “considerable amount” of time on Woody Island in 1970 engaged in “traditional and subsistence” activities is a misleading exaggeration.

          Maurice fished commercially and for subsistence purposes in the Kalsin Bay area throughout the 1960’s. Maurice moved to Washington State by 1968 to attend welding school. In 1970 he and his wife and children were living in Washington, although Maurice also commercially fished in Alaska. His children have never been to Woody Island since they moved to Washington.

          Paul enlisted in 1960. In 1963 he got married in Hawaii. In 1964 he left military service and he and his wife had their first child while they were living in the State of Washington.

          Paul returned to the Kodiak area in 1965. Like Maurice, Paul fished commercially and for subsistence purposes in the Kalsin Bay area throughout the 1960’s. From 1965 through 1970 he lived either in Kodiak or Washington State, typically living in Kodiak during the spring, summer, and fall while he commercially fished and living in the Amanda Park area of Washington during the winter. He worked in a shake mill there.

          Paul stated that, upon his return to Kodiak in 1965, he lived on a fishing boat. He stated, “I frequently went to live for periods on Woody Island where I would stay with my Uncle James Fadaoff or with Johnny Maliknak. I fished during this period off and on and would frequently tie up at Woody Island and stay there when not fishing.” “This period” likely refers to 1965, as his Uncle James Fadaoff ceased living on Woody Island at the end of 1965. His wife and child joined him in Kodiak later that year where they rented an apartment or house. His family stayed with him in Kodiak through at least 1966. The family visited but never lived on Woody Island. He also indicated that he was living “off and on” in Kodiak and Woody Island in 1967.

          As previously discussed, in 1968 and 1970, he commercially fished with his half-brother James Hartle on his boat named “Banshee” They obtained their food and supplies in Kodiak, but sometimes on the weekends they camped or slept on their boat at Woody Island. He remembered spending the night on Woody Island at least 4 or 5 times in 1970, either staying on a boat or with his uncle Johnny Maliknak. He went there to “goof off”, swim, and visit his brother Daniel’s grave.

          Both Leanna and Rayna moved to Kodiak in approximately 1959 and married. According to her brothers, Leanna “did not return much to [Woody] Island after that * * *.” She was best friends with Patricia Hampton and Patricia never saw Leanna again on Woody Island after 1959. Leanna was living in the State of Washington in 1970.

          According to Mr. Feichtinger, Rayna and her husband visited Woody Island “on a very, very regular basis, often staying days at a time,” until 1967 when she divorced her husband and relocated to the State of Washington. In fact, until a recent visit, she had not been on Woody Island since her brother Danny died in 1967.

          Leanna and Rayna are enrolled to Woody Island. Leanna listed Woody Island as her permanent residence on April 1, 1970, but listed Seattle as the place where she resided for two or more years on April 1, 1970, and Kodiak as the place where she resided for an aggregate of 10 or more years. Rayna listed Woody Island as her permanent residence on April 1, 1970, and as the place where she resided for an aggregate of 10 or more years, and listed Bremerton, Washington, as the place where she resided for two or more years on April 1, 1970.

          Maurice and Paul are not enrolled to Woody Island. The Family List shows that Maurice listed Woody Island as his permanent residence on April 1, 1970, the place where he resided for two or more years on April 1, 1970, and the place where he resided for an aggregate of 10 or more years. Paul listed Woody Island as his permanent residence on April 1, 1970, but did not identify a place where he resided for two or more years or for an aggregate of 10 or more years. The Family List identifies both their addresses as an address in Amanda Park, Washington, which is the same as their mother’s address. Both them still resided in Washington as of the date of hearing. Both stated by affidavit that they would like to return to Woody Island to live but have not done so because of the damage to the water system, the closing of the FAA facilities and related ferry service, the school closing, and the lack of employment opportunities. (Tr. 189, 247, 961, 977-78, 980, 1003-04, 1450, 1465-69, 1574-79, 1585-87. 1599-05, 1601-06, 1608, 1611, 1619-21, 1642-43, 1665-67, 1676-85, 1688, 3523-24; Exs. L-DOC-81, -85, -117, -118, -124, -125; BIA-2B, pp. 132, 97, 36, 31-30, 23).

          Daniel, who died in 1967, obviously was not a permanent resident of the alleged Village in 1970 nor did he live for a period of time there in 1970.

          Both Maurice and Paul basically lived where there was work or schooling, either in the State of Washington or in Kodiak during breaks from commercial fishing. The Harmon house was not standing by 1970 and there is no evidence that they used it after the earthquake. Instead, during their infrequent visits in the late 1960’s and 1970, they either did not stay the night or stayed on their boats, camped, or roomed with relatives. Further, there is little evidence that they relied upon Woody Island for subsistence purposes during the decade ending in 1970.

          They stated that they have not returned to Woody Island to live for various reasons. However, there are wells to compensate for the lack of running water. Further, the closing of the FAA facility and ferry did not occur until after 1970 and they chose to live in Washington and Kodiak long before the closing of the school in May 1969. Once again, it is the lack of employment opportunities that stands out as the primary reason for choosing not to live in the alleged Village up through 1970.

          Neither Paul nor Maurice was a permanent resident of the alleged Village on April 1, 1970. Neither of them lived there for a period of time in 1970. Paul spent the most time there in 1970, but that was only about a half-dozen weekends to “goof off”, swim, and visit his brother’s grave.

          Rayna and Leanna spent even less time on Woody Island. Rayna relocated to the State of Washington and did not visit Woody Island after 1967 for approximately 30 years. Leanna did not return much, if at all, after 1959. They did not live there after 1959 or attempt to maintain the Harmon house. They were not permanent residents of the alleged Village on April 1, 1970, and did not live there for a period of time in 1970.

          52. Michael Nicholas “Mitch” Komm Gregoroff (res: 1960’s, 1970)

          He is not enrolled to Woody Island. He applied to enroll to the Natives of Kodiak and listed his mother’s address in Amanda Park, Washington as his place of permanent residence on April 1, 1970. He listed Kodiak as the place where he resided for an aggregate of 10 years or more. He testified and executed affidavits introduced into evidence.

          He was born in 1937 to Anastasia Fadaoff Harmon Hartle and Kelly Gregorioff. He was raised by the Komm family in Kodiak and the State of Washington. He spent 8 years of his early childhood living in the State of Washington because of health problems.

          In 1950 he began living with his mother and half-siblings on Woody Island, first in the Pavloff house and then in the Harmon house. He lived there until approximately 1960, when he joined the military. Prior to the 1964 earthquake and tidal waves he returned to Kodiak, where he took up residence and worked for a cannery.

          He then moved to the State of Washington in 1964 because the canneries in Kodiak were wiped out by the tidal waves. However, by 1966 there were 18 seafood plants in Kodiak and 8 more at other points on Kodiak Island where he could have sought employment. Furthermore, he continued to work in Alaska from 1964 onward, fishing commercially and for subsistence purposes nine months each year in Adak and Kalsin Bay.

          He lived in Washington the other three months of each year until 1969. He may also have lived on Woody Island sporadically for brief periods of time while fishing. In 1969 and 1970 he lived on the boat named “Joel-B”, using Kodiak as a base of operations for commercial fishing. In 1970 he did not stay overnight on Woody Island and did not visit there much.

          He referred to both Woody Island and the Joel-B as “home.” He does not live on Woody Island because there is no ferry service to access Kodiak where employment opportunities, health care, and schools are located and because there is no running water on Woody Island. (Leisnoi’s Answering Brief, p. 172; Tr. 419, 974-75, 1003-04, 1400, 1433-38, 1450, 1453-56, 1463, 1604, 1608, 1611; Exs. L-DOC-73, -117, -118, -129, -149).

          His permanent residence was not the alleged Village on April 1, 1970, nor did he live there for a period of time in 1970. Until 1969 he returned to Washington, not Woody Island, after commercial fishing to be with his family. In 1969 and 1970 his base of operations to which he returned was Kodiak. His visits to Woody Island were not frequent nor substantially for subsistence purposes. He did not stay overnight nor visit much in 1970. He specifically chose not to live or enroll there.

          The reasons for his choice are similar to those of his half-brothers, Paul and Maurice Harmon. As with his half-brothers, the lack of employment opportunities stands out as the primary reason for his choice up through 1970.

          53. Alexander “Alexie” John Fadaoff, Sr. (dec’d: 1988; res: 1960’s)

          54. Charlotte White (res: 1960’s)

          55. Alexander John Fadaoff, Jr. (res: 1960’s)

          56. David James Fadaoff (res: 1960’s)

          Alexander Sr. was born to Anastasia Fadaoff in 1934 and was raised in the Kodiak Baptist Mission. His father is unknown. He was married to Charlotte in the 1950’s. He died in Seattle in 1988 and is buried on Woody Island.

          Charlotte and Alexander Sr. had two children, Alexander Jr., born in 1955, and David, born in 1959. According to Mr. Feichtinger, the family lived primarily in Kodiak but “visit[ed] frequently for periods of time [Anastasia and Ella Fadaoff] on Woody Island” during the 1960’s. There is no doubt that Alexander Sr. did visit, as he was seen fishing there in 1970. However, live-long Woody Island resident Johnny Maliknak identified 41 Natives as having resided on Woody Island at some time during the period of April 1, 1960, to April 1, 1970, and Alexander Sr. and his family were not included on that list. Zelma Stone also testified that they never lived on Woody Island, but, rather, alternated between living in Kodiak and Seattle.

          None of them is enrolled to Woody Island and none is listed as a 1970 resident thereof in the Feichtinger Report. No statement or testimony from any of them was introduced into evidence. The Family List shows that Alexander Sr. and Alexander Jr. both listed Woody Island as their permanent residence on April 1, 1970, but listed Seattle as the place where they resided for two or more years on April 1, 1970, and Kodiak as the place where they resided for an aggregate of 10 or more years. (Tr. 483-84, 509, 974, 979, 1466-67; Exs. L-DOC-16, -108, -118, -161, p. 91; -176, -385, p. 7004; BIA-2B, pp. 40-9).

          The weight of the evidence shows that none of them was a permanent resident of the alleged Village at any time during the decade ending in 1970. It further shows that none of them lived for a period of time there in 1970.

          CHYA FAMILY

          57. Mary Shuravloff Chya (dec’d: 1996; res: 1970)

          58. John Chya (dec’d: 1984; res: 1970)

          59. Betty Chya Wolf Stowers

          60. Walda Chya Hoff (res: 1970)

          61. Marvin Love (res: 1970)

          62. David Love (res: 1970)

          63. Keith Abraham (res: 1970)

          64. Randy Abraham (res: 1970)

          65. Nettie Carol Chya Matthews

          66. Norma Dale Larsen

          67. Jonna Chya Purcell

          68. Virginia Lee Deveau

          69. John William Chya, Jr. (res: 1970)

          70. Michael George Chya (res: 1970)

          71. Nova Lemore Chya (dec’d: 1988; res: 1970)

          72. Edward Chya (res: 1970)

          73. Tamera Rae Chya (dec’d: 1997; res: 1970)

          The only statements from these Natives introduced into evidence are: the 1978 deposition of Mary, unsworn interviews of Michael, Edward, Betty, Nettie, and Jonna, and affidavits submitted with Leisnoi’s application. Mary, John, Norma, Jonna, Virginia, John Jr., and Michael executed affidavits discussing their purported use and occupancy of Woody Island and they signed a separate affidavit stating that Woody Island was temporarily unoccupied in 1970 because of the closing of the school there in 1969.

          Mary was born in 1921 and John was born in 1904. Her grandparents lived on Woody Island, her parents maintained gardens there, and she visited Woody Island as a child. John’s parents were raised on Woody Island at the Baptist Mission and John lived on Woody Island as a child.

          Mary lived in Kodiak her entire life and John lived in Kodiak for his entire adult life. John worked for Kodiak Electric Association for 29 years. They married and had numerous children, including Betty, Walda, Nettie, Norma, Jonna, Virginia, John Jr., Michael, Nova, Edward, and Tamera, born in 1940, 1943, 1944, 1949, 1950, 1952 (June 7), 1957, 1958, 1961, 1963, and 1964, respectively. The family lived in Kodiak, but visited Woody Island to picnic, beachcomb, pick berries, hunt, and fish.

          Mary, John, and the children, except Walda, are all enrolled to Woody Island. Mary, John, and the five youngest children originally enrolled elsewhere. Walda enrolled to the Village of Bell Flats and her children, Keith, Randy, Marvin Jr., and David, born in 1962, 1964, 1967, and 1969, respectively, are not enrolled to Woody Island.

          The Woody Island enrollees all listed Woody Island as their permanent residence on April 1, 1970. However, all of them, except Jonna, listed Kodiak as the place where they resided for an aggregate of 10 or more years. Jonna listed Woody Island as the place where she resided for an aggregate of 10 or more years and for two or more years on April 1, 1970. Betty and Nettie listed Anchorage as the place where they resided for two or more years on April 1, 1970, and the rest listed Kodiak as the place where they resided for two or more years on April 1, 1970.

          Walda stated that her parents considered Woody Island to be home. Edward stated that his mother talked of wanting to move to Woody Island. He also said that he would love to live on Woody Island. Neither of them knew why their parents never lived on Woody Island as adults.

          Each of the identical affidavits submitted with Leisnoi’s application states that the affiant lived on Woody Island for periods of time each year where “my residence consists of a 5 room house * * *.” Contrary to the content thereof, Mary Chya admitted that neither she nor her husband or children had a house on Woody Island or lived there for periods of time each year (except her husband as a child). In fact, according to Mary, they lived in Kodiak and stayed overnight on Woody Island only two or three times over the many years they visited there.

          According to Mr. Feichtinger, they “frequented Woody Island to visit and engage in traditional and subsistence activities,” including “visit[ing] [Woody Island with those children still living with Mary and John] throughout 1970 on a regular basis.” Mr. Feichtinger based his statements upon the deposition testimony of Mary.

          Mary did testify that they visited Woody Island in 1970 but did not state that they went there regularly or otherwise identify the frequency of their visit(s). Michael remembered going to Woody Island only a couple of times around 1967 or 1968 with relatives other than his parents.

          Three of the older children, Nettie, Jonna, and Walda stated that they never lived or spent the night on Woody Island. Nettie stated she and her husband and two older children visited Woody Island during the decade ending in 1970 to beachcomb, picnic, and look around. Jonna indicated that the Chya family would take the ferry to visit Woody Island during that decade and would then walk around and pick berries. She did not have strong memories of Woody Island, suggesting that their visits were neither frequent nor of great significance. Walda remembered picnicking, playing, and picking berries there with her parents and siblings.

          As an adult, Walda and her children and husband at that time, Marvin Love, Sr., made weekend daytrips to Woody Island in the 1960’s and 1970 when Marvin Sr. was off work. They picnicked and picked berries. Her husband also hunted rabbits.

          Betty stated that she visited Woody Island with her parents as a child but only spent the night there a few times during slumber parties with a church group. She stated that she moved from Kodiak to Anchorage in the late 1960’s and was not on Woody Island in 1970.

          None of the older children (Betty, Nettie, Norma, Jonna, Virginia), except Walda, are listed in the Feichtinger Report as a 1960’s resident or 1970 resident of Woody Island. Walda and her four children, are listed as 1970 residents. Numerous witnesses identified the Chya family as residents of Kodiak. (Leisnoi’s Answering Brief, p. 172; Tr. 248-54, 305-10, 420, 968-70, 1006, 1355, 2033, 2071; Exs. BIA-2A, pp. 117-115, 114-11, 101-87, 84-82; BIA-2B, pp. 146, 138, 117-16, 109-08, 36-35, 25, 20; L-DOC-33, -130, -137, -181, -322, -365; S-6N; L-CHART-4; Armstrong Depo., p. 43).

          Virginia, John Jr., Michael, Nova, Edward, and Tamera were all minors on April 1, 1970, and therefor the permanent residence of each of them shall be determined according to that of their parents. Similarly, Keith, Randy, Marvin, and David were all minors on April 1, 1970, and therefor the permanent residence of each of them shall be determined according to that of their parents.

          The facts show that no one in the family ever lived on Woody Island, except John during his childhood. They simply made daytrips there, primarily for recreational purposes. There is no clear indication of how often they visited. There is no substantial evidence that Woody Island served as a significant source of subsistence foods or otherwise served as the center of their Native family life during the decade ending in 1970. The alleged Village was not the permanent residence of any of them on April 1, 1970, and none of them lived there for a period of time in 1970.

          REDICK FAMILY

          74. Marie Redick Unger (res: 1970)

          75. Larry T. Redick (res: 1970)

          76. William W. Redick (res: 1970)

          77. Robert J. Redick (res: 1970)

          78. David W. Redick (res: 1970)

          Larry, William, Robert, and David, born in February 23, 1960, April 6, 1952, April 5, 1953, and March 21, 1954, respectively, are the children of Marie and her non-Native husband. Marie’s deposition taken in 1978 and unsworn interviews of Larry, William, and David conducted in 1998 were introduced into evidence. No statement from Robert was introduced.

          Marie and her children, except David, are enrolled to Woody Island and listed Woody Island as their place of permanent residence on April 1, 1970, but listed Kodiak as the place where they resided for two or more years on April 1, 1970, and for an aggregate of 10 or more years. Marie originally enrolled to the Natives of Kodiak but switched to Woody Island when she found out she could enroll to a village where she had ancestral ties. David enrolled to the Natives of Kodiak.

          Marie’s great grandfather was Nikolai Litnik, who lived with his children and some of his grandchildren on Woody Island around 1920. Marie lived for periods of time in the summer on Woody Island with her mother until Marie was 12 or 13 years old (1944 or 1945).

          At all other times she has lived in Kodiak. She, her husband, and her children have lived in Kodiak to be close to employment and activities for the children. Marie testified in 1978 that she felt she belonged on Woody Island and that she planned to return to Woody Island when her kids were grown. She stated that the closing of the FAA school on Woody Island was not the reason why she had not yet returned.

          She further testified that she and her family traveled to Woody Island every summer during the decade ending in 1970 for a week or two at a time, that they stayed in the Simeonoff house and she weeded the garden there, and that they fished, picked berries, cut trees for fuel, beachcombed and picnicked there. She qualified that David did not go with them in 1970 and that they stayed for one week in 1970. Mr. Feichtinger characterized the week stay as a “considerable amount of time” spent on Woody Island in 1970.

          Marie’s testimony is somewhat at odds with the statements of her children. David stated that they did not go to Woody Island frequently, but, rather, “a couple of times” to picnic, and that he does not remember staying overnight. Larry similarly stated that they went there on a “few occasions” but that he did not spend the night there until the 1970’s and that he did not want to move there. Likewise, William said that they had a “few” picnics there in the early 1960’s, that he did not spend the night before 1970, that he could not remember if he was there in 1970, and that his mother had never indicated to him that she would like to live on Woody Island. (Leisnoi’s Answering Brief, p. 172; Tr. 248-54, 305-10, 420, 943, 1007, 2033, 2810; Exs. BIA-2B, pp. 109-08, 20-19; L-DOC-329, -330. -332; S-6L; Armstrong Depo., pp. 69-70).

          While the Redick’s clearly spent some time on Woody Island during the decade ending in 1970, including 1970, as confirmed by Christina Hoen, Esther Denato, and others, their use was mostly recreational and not frequent or extensive. The center of their Native family life was Kodiak, where they resided and where there were activities for the children and employment opportunities. Woody Island, by Marie’s own admission, was not the place where she intended to return to live in 1970 but a place to go after her children were grown. Consequently, Woody Island was not her permanent residence during the 1960’s or on April 1, 1970. The same holds true for her children, as they were all minors on April 1, 1970, and therefor their residency is established according to that of their mother.

          According to Marie, she, Larry, William, and Robert stayed in the alleged Village for approximately one week in 1970 for recreational and subsistence purposes. The children have little or no memory of this week-long stay. It is questionable whether this week-long stay qualifies them as enrollees who lived for a period of time in the alleged Village in 1970

          ROBERTSON FAMILY: John “Jack” R. Robertson had a homestead site on Woody Island that he never perfected prior to his disappearance in the 1930’s (L-DOC-334; Tr. 1699, 1702-04, 1745-46). His son, William J. Robertson, Sr., married Myra Malutin.

          79. Myra Malutin (dec’d: 1982 or 1983; res: 1970)

          80. William Robertson, Jr. (res: 1970)

          81. Bruce Robertson (res: 1970)

          William J. Robertson, Sr., and Myra Malutin are the parents of William Robertson, Jr., who is the father of Bruce Robertson, born November 14, 1953. Myra apparently lived and worked on Woody Island prior to World War II. Thereafter, she lived in Kodiak but spent “a lot” of time on Woody Island, according to her son William Jr. She visited Woody Island at least once in 1970, according to Yule Chaffin’s diary. No statement or testimony from her was introduced into evidence.

          William Jr. owned a home in Kodiak City where he and his family lived from 1952 through 1974. From 1960 through 1970, Kodiak was listed as his residence on his driver’s license and voter registration card. He attended church there and considered it his home in 1970.

          He earned a living by working for the U.S. Navy and the U.S. Coast Guard in Kodiak for 24 years and by commercial fishing. During the 1960’s, his wife worked for Sears Roebuck & Company in Kodiak.

          William Jr. and his family have never owned or lived in a structure on Woody Island.

          He tried unsuccessfully to acquire land on Woody Island: namely, the former homestead site of his grandfather, Jack Robertson, and the Chabitnoy property. He did not think of Woody Island as his home but as “a place that we would like to have a homesite or a place to retire to, a summer home or whatever.” When he retired from the Coast Guard in 1974, they moved to Tacoma, Washington, but he has returned to the Kodiak area each summer to fish.

          Bruce testified that his father “frequented” Woody Island in 1970. At the time he considered Woody Island to be his “home away from home.” That year he and his dad made 15 to 20 or more daytrips to the island in their boat to fish, swim, hunt rabbits, and beachcomb. He also went there with “the Sundberg boys.” He could not remember if they ever stayed overnight. They also camped and recreated elsewhere. Bruce has been married twice and neither of his two wives nor his two children have ever visited Woody Island.

          Consistent with Bruce’s testimony, his father testified that they have visited but never lived on Woody Island nor stayed overnight there from 1960 through 1970. He characterized Woody Island as their primary picnicking and beachcombing area when they lived in Kodiak. He likened their visits there to going to a park.

          When the old FAA housing was being renovated by Leisnoi in the mid-1970’s, Karl Armstrong asked Bruce if he was interested in living there. Bruce testified that he replied he had no interest because there were no employment opportunities there.

          Myra was not enrolled to Woody Island. William and Bruce first applied to enroll to Ouzinkie but are now enrolled to Woody Island. Each of the two listed Woody Island as his permanent residence on April 1, 1970, but listed Kodiak as the place where he resided for two or more years on April 1, 1970, and as the place where he resided for an aggregate of 10 or more years. (Leisnoi’s Answering Brief, p. 172; Tr. 246, 948-49, 1002, 1695-97, 1704-08, 1710-25, 1736, 1745-49, 1752-57, 1761, 1767-68; Ex. L-CHART-8; BIA-2B, pp. 104, 18)

          The evidence of Myra’s use of Woody Island after World War II is limited to one visit in 1970 and her son’s vague statement that she spent “a lot” of time on Woody Island. None of the multitude of witnesses identified her as one of the few Natives who used or occupied Woody Island with any frequency or consistency in the late 1960’s or 1970. She was not a permanent resident of the alleged Village and did not live there for a period of time in 1970.

          Because Bruce was a minor on April 1, 1970, his permanent residence shall be determined according to that of his parents. His father, William Jr., established long-term employment and residency in Kodiak and never lived or stayed overnight on Woody Island. He viewed Woody Island as a “park” where they could picnic and beachcomb and as a place where he would like to retire or have a summer home. He was not a permanent resident of the alleged Village on April 1, 1970, and therefor neither was his minor son Bruce. Neither of them lived for a period of time in the alleged Village in 1970, but merely recreated there on daytrips.

          WARD FAMILY

          82. Kyra Ward (res: 1970)

          83. Edward Ward (res: 1970)

          Edward was born January 30, 1953, and Kyra was born June 22, 1955, to Harold and Betty Ward. Edward, Kyra, their siblings, and father are Woody Island enrollees, yet Edward testified that none of them ever lived on Woody Island. Betty is not enrolled to Woody Island. Except for the testimony of Edward, no statement or testimony from any of the Wards was introduced into evidence.

          Harold and Betty were close friends with Bill and Zelma Stone. Zelma confirmed that the none of the Wards ever lived on Woody Island and she never saw any of them there.

          The Ward family moved from the State of Washington to Kodiak in September 1965. His parents moved to Anchorage in 1977 and now live in Wasilla, Alaska. Edward moved to Homer, Alaska in the late 1980’s.

          The Family List shows that Harold, Edward, and Kyra all listed Woody Island as their permanent residence on April 1, 1970, Kodiak as the place where they resided for two or more years on April 1, 1970, and Sitka as the place where they resided for an aggregate of 10 or more years. Thus, apparently, the family lived in Sitka before they lived in Washington.

          Edward testified that his father had ancestral ties to Woody Island, although those ties were never clearly identified. At the time they enrolled, Edward did not know much about his father’s history and ancestry, so he questioned him about them. He testified that he had to “pry[] the history out of my father on his ancestry and the tranquility of [Woody Island.]” At that time they had lengthy discussions regarding where to enroll. His father’s expressed “concern was being back where his roots were. * * * All he ever talked about was being able to get back to Woody Island.”

          Edward testified that, as of 1970, the family’s home was in Kodiak, where they lived, went to school, attended church, and received their mail and where his parents were registered to vote and licensed to drive. From 1969 to 1971 Edward visited Woody Island a couple of dozen times with friends to avoid chores at home, hunt rabbits, harass the cattle, and otherwise recreate. Kyra also visited the island with him or her friends. Most of his visits were daytrips. His longest stay was two nights and three days.

          Edward is now the CEO and President of Leisnoi. (Tr. 417, 419, 426, 463-64, 1000-01, 2454-57, 2461-68, 2476, 2490, 2496-98, 2506-29; Ex. BIA-2B, pp. 105, 11-10).

          Because Edward and Kyra were both minors on April 1, 1970, their permanent residence shall be determined according to that of their parents. Their father is the only parent with any ties to Woody Island and those ties were never clearly defined. What is clear is that he never lived there and that there is no evidence that he even visited there. Neither parent’s permanent residence was the alleged Village on April 1, 1970, and therefore the permanent residence of Kyra and Edward was not the alleged Village on April 1, 1970.

          Further, Kyra and Edward did not live for a period of time on Woody Island, let alone the alleged Village, in 1970. They merely recreated there with friends, primarily on daytrips.

          OTHERS

          84. Marty Charles Shuravloff (res: 1970)

          He was born in 1953 to Martha and Nick Shuravloff. His maternal grandparents lived on Woody Island. His mother also lived there, both in the Baptist Mission and in her own home. She moved to Kodiak in the early 1940’s. Marty’s father has never lived on Woody Island. While his parents sometimes took the family to Woody Island for picnics, they have lived in their own home in Kodiak since the mid-1940’s. Nevertheless, they are enrolled to Woody Island, listing it as their permanent residence on April 1, 1970, but listing Kodiak as the place where they resided for two or more years on April 1, 1970, and for an aggregate of 10 or more years.

          Marty testified at the hearing and an unsworn interview of him was also introduced into evidence. No statement or testimony from his parents was introduced.

          Marty lived in Kodiak with his parents up through the decade ending in 1970. As an adolescent in the 1960’s, he traveled with friends to Woody Island and other islands to hunt, fish, and “fool around”. They viewed Woody Island as their “playground”. Mr. Feichtinger indicated that Marty spent a “considerable amount of time” there in 1970, but Marty was not sure whether he spent any time there in 1970.

          In the mid-1970’s, Marty became the general manager of Leisnoi’s project to renovate the FAA housing on the east side of Woody Island. During the renovation he and his wife and children lived in that housing for 4-6 months before moving back to Kodiak. Except for those months and a period when he attended college, he has lived in Kodiak all his life.

          He is enrolled to Woody Island. He listed Woody Island as his permanent residence on April 1, 1970, but listed Kodiak as the place where he resided for two or more years on April 1, 1970, and as the place where he resided for an aggregate of 10 or more years. (Tr. 248-54, 420, 941, 948, 1007-08, 2034, 2095, 3151-68; Exs. L-CHART-7; BIA-2B, pp. 115, 16).

          Because Marty was a minor on April 1, 1970, his permanent residence shall be determined according to that of his parents. Their permanent residence, and consequently Marty’s permanent residence, throughout the decade ending in 1970 was Kodiak, not the alleged Village.

          Also, Marty did not live for a period of time in the alleged Village in 1970. He was not sure if he visited there in 1970 and Woody Island was simply one of several “playgrounds” visited by himself and his friends.

          85. Charles C. Naughton (dec’d: 1997; res: 1970)

          He testified via deposition taken in 1978. He first enrolled to the Natives of Kodiak and then applied to change his enrollment to Woody Island. He believed that he could have chosen to enroll anywhere in Alaska, but chose Woody Island because he had been there, felt he belonged there, knew and respected the people enrolling there, and was attracted by the potential long-term economic benefits.

          He testified that he is enrolled to Leisnoi, but he is not listed on the certified Native Roll for Woody Island. He listed Woody Island as his permanent residence on April 1, 1970, but listed Kodiak as the place where he resided for two or more years on April 1, 1970, and as the place where he resided for an aggregate of 10 or more years. He was born in 1947.

          His ancestors are from Katalla in southeast Alaska. He has no ancestral ties to Woody Island. However, he did grow up in Kodiak and on Woody Island. He had relatives, Janet and Pappy Lee, who lived in the FAA housing on Woody Island prior to the 1964 earthquake. He stayed with them summers and some winters until approximately 1961.

          Thereafter, he has not lived on Woody Island but has visited the island, staying no more than a week or two at a time. His uncles, Harold and Edward Naughton, confirmed that he lived in Kodiak, not on Woody Island, during the 1960’s, and that he sometimes camped on Woody Island. He would stay in his boat, in a dilapidated cabin near Sawmill Point, or in the Chabitnoy house. He testified that he visited the island once a week or twice a month in the summertime, but it is not clear whether he was referring to the years after or before 1970 or both.

          By 1970 he was approximately 20 years old and had entered college in the State of Washington. In the summers he commercially fished in Anton Larsen Bay and fished for subsistence purposes off of Woody Island. He also hunted rabbits there. Karl Armstrong testified that Charles probably was on Woody Island in 1970, whereas Paul Harmon did not see Charles there in 1970. One year Charles took time off from college to work as a truck driver and he was not sure if that year was 1970.

          By 1978 he was living and working in Anchorage, but visited Kodiak and Woody Island “frequently”. He also owned a home in Kodiak which he rented to others. When in Kodiak, he would sleep on his boat.

          He stated that he would build a home on Woody Island if not for the likelihood of vandalism. He lamented the fact that no one was living there to discourage vandals.

          (Exs. BIA-2B, p. 119; L-DOC-385, p. 7,014; S-6J, pp. 3-9, 11-12, 16, 18-20, 22-29; Armstrong Depo., pp. 41, 46, 57-58, 114; Tr. 243-44, 265, 303, 467, 1008-09, 1683-85).

          Charles did not live on Woody Island after 1961. The frequency of his visits to Woody Island during the 1960’s and 1970 is unclear. He never stayed more than a week or two at a time. A significant portion of his time at Woody Island was spent outside the alleged Village and his ties or connections were not to the alleged Village but to the island generally, particularly the east side. He neither owned nor maintained any structure in the alleged Village. He was not a permanent resident of the alleged Village on April 1, 1970.

          Nor can he be considered an enrollee who lived for a period of time in the alleged Village in 1970, as he is not listed as an enrollee of the alleged Village on the certified Native Roll.

          86. George Hansen (res: 1970)

          He was born on March 19, 1952. He is enrolled to Woody Island. He listed Woody Island as his permanent residence on April 1, 1970, but listed Kodiak as the place where he resided for two or more years on April 1, 1970, and Seward as the place where he resided for an aggregate of 10 or more years and the place where he was born.

          His parents lived in Seward from the 1940’s until they moved the family to Kodiak in 1963. They never lived on Woody Island but recreated there, picnicking, beachcombing, and fishing. They moved back to Seward in 1976. His mother and the rest of his family enrolled to Shungnak.

          George lived with his parents until sometime in 1970 when he took up separate residency in Kodiak. That year he also graduated from high school. During his high school years, including 1970, he recreated on Woody Island and other islands during the summer, beachcombing, playing, picnicking, fishing, and “goofing around.” George testified at the hearing that he loved Woody Island and that he would like to live there if economics would permit it, but he continued to live in Kodiak up through the date of hearing. (Tr. 248-54, 423, 1009-10, 3171-85; Exs. BIA-2B, p. 31; L-DOC-385, p. 7,003).

          George reached majority only 12 days before April 1, 1970. It is unclear whether he moved out of his parents home in Kodiak before or after he reached the age of majority, but it is clear that he continued residing in Kodiak.

          His and his parents’ only Woody Island ties and activities are recreational. Even the frequency of their mere recreational use was not specified, except by Mr. Feichtinger without supporting evidence. Several witnesses never saw George on Woody Island in 1970 or any other time. The alleged Village neither served as their home or the center of their Native family life at any time.

          In sum, the alleged Village was not George’s permanent residence, whether determined according to his parents’ permanent residence (either Kodiak, Seward, or Shungnak) or otherwise. Nor did the vague testimony of “goofing around” on Woody Island establish that George lived in the alleged Village for a period of time in 1970.

          87. Anna Kerr Blinn Bowers (res: 1970)

          She was born in 1922 in Seldovia, Alaska. Her father is Mike Kerr, who moved his family to Kodiak in 1924. From that point forward Anna has resided in Kodiak, except for the year 1930, when she stayed at the Baptist Mission on Woody Island.

          After her parents divorced, her father married Anna’s stepmother, Grace Amuknuk, in approximately 1928. Grace was raised in the Woody Island Baptist Mission.

          Anna married in 1942 and eventually had children. She and her family visited Woody Island “often” on daytrips to picnic, beachcomb, and pick berries during the decade ending in 1970, including two or three visits in 1970. The only time she stayed overnight was when she worked at Camp Woody prior to 1963.

          During the 1960’s Kodiak was the place where she was employed, registered to vote, and licensed to drive. She testified that she considered Kodiak to be her home, but that she would like to live on Woody Island if she had a chance.

          She and many of her relatives are enrolled to Woody Island, although none of them lived there after 1940. She listed Woody Island as her permanent residence on April 1, 1970, and as the place where she resided for two or more years on April 1, 1970, but listed Kodiak as the place where she resided for an aggregate of 10 or more years. (Exs. L-DOC-51, -108, tab 4, p. 17; BIA-2B, p. 73; Tr. 248-54, 305-10, 423, 1009, 3211-29, 3233, 3245-48, 3250-51).

          The evidence shows that Anna’s home and permanent residence on April 1, 1970, was Kodiak, not the alleged Village, and that she did not live in the alleged Village for a period of time in 1970. Her testimony that she visited Woody Island “often” is vague. In 1970 she visited for only two or three daytrips, which is less than “often.” Several witnesses never saw her on Woody Island and knew her to be a resident of Kodiak. She did not stay overnight and her use was primarily, if not wholly, recreational.

          88. Georgi Nekeferoff (dec’d; res: 1960’s, 1970)

          Little is known about Georgi’s life prior to World War II. Derivations of his family name, Nekeferoff, are found on early census records of Woody Island and the records of the Baptist Mission. Several Nekeferoff’s are listed as attending the Longwood School on Woody Island during the 1930’s.

          Georgi, now deceased, never married and had no children. He did not enroll to Woody Island. No statements or testimony from him were introduced into evidence.

          During the decade ending in 1970, the Nekeferoff family residence was in Kodiak and Georgi lived primarily in the Kodiak jail because of his alcoholism. He was kept there more for his own protection than as punishment. He cooked and served as a trustee at the jail. He had a “special” room there and a “special” arrangement with the Kodiak Police Chief. There is even evidence that the Police Chief may have been Georgi’s legal guardian, managing his funds so that Georgi would not spend them all on alcohol.

          Georgi also spent time on Woody Island when he was not in jail. He lived at times in an old cabin on the Garden Beach area of Woody Island. That cabin was dilapidated by the mid-1960’s and had collapsed by 1970. There is conflicting, uncertain, and vague testimony as to whether he was alive in 1970 and whether, how, and when he used Woody Island in the 1960’s and 1970. (Tr. 248-54, 305-10, 423, 1009, 1469-70, 1597-98, 1980-83, 2809-10, 2879-80; Exs. L-DOC-129, -173, -174, -176, -420)

          The evidence does not establish that Georgi was a permanent resident of Woody Island on April 1, 1970. There is no subjective evidence of his intent to return there. The objective evidence shows that he spent the vast majority of his time living in Kodiak. His ties to Woody Island and use thereof during the decade ending in 1970 are vague and uncertain. By 1970 the Garden Beach cabin had collapsed and the jail and family residence were in Kodiak.

          89. Karl Armstrong, Jr. (dec’d: 1983; res: 1960’s, 1970)

          Karl was born in 1927 to Afanasiia Rysev, daughter of Sophia Pestrikov and Vasilli Rysev, all of whom lived on Woody Island. Karl and his mother left Woody Island in 1928. He testified via deposition that he did not return to live on Woody Island until 1957 or 1958. In the meantime, he lived and worked for newspapers in Kodiak and Anchorage. In 1957 he moved back to Kodiak from Anchorage and unsuccessfully attempted to acquire land, first in Kodiak and then on Near Island, under the Native Allotment Act.

          During the decade ending in 1970, he resided and was employed in Kodiak. His primary occupation was writing for and managing the local newspaper. Several witnesses testified that Karl lived in Kodiak, not Woody Island, and/or that they had never seen him on Woody Island.

          He stated that he lived on Woody Island for 3 months in the summer of 1957 or 1958, off and on for a total of approximately 60 days in 1968, and non-winter weekends totaling approximately 35 days per year from 1969 to 1972. From 1968 to 1972 he did not stay for more than 5 days at one time. He did not own property there, but stayed primarily in the Simeonoff house and assisted in maintaining the garden there. He falsely or misleadingly indicated in an affidavit submitted with Leisnoi’s application that he lived there since 1963 and that a house (the Simeonoff house) was his house. After 1972 he did not spend much time on Woody Island.

          Charles Naughton confirmed that Karl did visit Woody Island and Christina Hoen acknowledged that she gave Karl permission to use the Simeonoff house. His primary activities on Woody Island were writing for the newspaper and recreating. He also stated that he hunted rabbit for subsistence purposes, but Charles Naughton testified that Karl merely walked with him when hunting rabbits and preferred to sit on the beach.

          Karl is enrolled to Woody Island. He testified that he regarded Woody Island as his “home,” but the Family List shows that he listed Kodiak as his permanent residence on April 1, 1970, as the place where he resided for two or more years on April 1, 1970, and as the place where he resided for an aggregate of 10 or more years. (Tr. 296, 300, 422, 467, 946, 1009, 2034; Exs. BIA-2B, p. 146; S-6A, p. 33; S-6B, p. 17; S-6F, p. 53; S-6J, pp. 5, 30-31, 40; Armstrong Depo.).

          From 1928 to 1967 Karl rarely ventured to Woody Island and it clearly was not the center of his Native family life. He established long-term employment and residency in Anchorage and Kodiak. While he began visiting the island more regularly during the 1968 to 1972 period, Karl never relied upon Woody Island for subsistence purposes. He recreated and wrote to sustain his newspaper business in Kodiak. For many decades up through 1970 the center of his Native family life was Kodiak where he had long been part of the modern cash economy. He was not a permanent resident of the alleged Village on April 1, 1970.

          However, his use of the alleged Village for multiple weekends totaling approximately 35 days in 1970 arguably qualifies him as an enrollee who lived there for a period of time in 1970.

          90. Roy Madsen

          Testimony, affidavits, and an unsworn interview of him were introduced into evidence. He was born in Kanatak, Alaska, in 1923. In approximately 1927 his family moved to Kodiak. Thereafter, he has resided in Kodiak, except for approximately 15 years during which he attended college, served in the military, and practiced law in Oregon. By approximately 1961 he had returned to Kodiak and eventually became a Superior Court Judge in Alaska.

          As a child he visited his sister and cousins who were being raised at the Baptist Mission orphanage on Woody Island. He began visiting the island again in 1966 when he acquired a boat so that he was able to travel to the island. He made several daytrips there in 1970 to pick berries and fish. In 1970 he was living with his wife and children in Kodiak, where he practiced law and was a member of KANA, the Rotary Club, the Navy League, and the Elks Lodge.

          During his childhood he also spent time with his aunt in Karluk. As an adolescent he spent summers with his father, a big game hunting guide, in Uganik and Eyak Bay. In 1961 he bought property in Kashuryak Bay, where Port Lions is now located. He had ancestors from Ninilchik and from Afognak.

          Based upon his ties and connections to many places, he believed that he could have enrolled to any one of approximately ten Native villages. He testified that the location of his permanent place of abode intended by him to be his actual home in 1970 was Kodiak. He further stated that the center of his Native family life to which he had the intent to return when absent from that place in 1970 could have been Woody Island, Karluk, Port Lions, Uganik, Eyak, or any of several other places. He thought that any of them could have qualified as his permanent resident up until the date upon which he enrolled and chose Woody Island. However, he first enrolled to Natives of Kodiak but later changed his enrollment to Woody Island.

          The Family List indicates that he listed Woody Island as his permanent residence on April 1, 1970, but listed Kodiak as the place where he resided for two or more years on April 1, 1970, and for an aggregate of 10 or more years. He is not listed in the Feichtinger Report as either a 1960’s resident or a 1970 resident of Woody Island.

          In the mid-1970’s he began the process of acquiring the property upon which the Fadaoff/Madsen house is located. Once he acquired it, he spent the entire month of August on Woody Island for several years. (Exs. L-DOC-172, -173, -174, BIA-2B, p. 118; Tr. 2862-80, 2884-87, 2909-12, 2917, 2925)

          The evidence does not show that he frequently or consistently used Woody Island during the decade ending in 1970. He did not state how often or how long he visited Woody Island other than mentioning several daytrips in 1970. Some childhood visits to the island and several daytrips 35 years later do not make the alleged Village the center of his Native family life.

          Kodiak was his “home” and the place to which he initially enrolled. He had ties to many places but always returned to Kodiak. The evidence shows that Kodiak, and not the alleged Village, was his permanent residence as of April 1, 1970. Further, he did not live for a period of time in the alleged Village in 1970.

          91. Fred Zharoff

          He is not listed as a 1960’s resident or a 1970 resident in the Feichtinger Report. He is enrolled to Woody Island. When he enrolled to Woody Island, he understood that he could enroll to any place where he wanted to live or where he had roots.

          He listed Woody Island as his permanent residence on April 1, 1970, but listed Kodiak as the place where he resided for two or more years on April 1, 1970, and for an aggregate of 10 or more years. Statements from him were introduced via live testimony, affidavit, and unsworn interview.

          He was born in 1944 and raised in Kodiak. His family owned a home in Kodiak. Except for periods of college attendance or service in the military or the State legislature, both he and his parents have lived in Kodiak all their lives.

          Beginning in the early 1960’s, he and his friends, both Native and non-Native, began frequenting Woody Island for recreational purposes, including camping, hiking, picking berries, and hunting rabbits. They also engaged in subsistence activities, including cutting firewood, hunting seals and ducks, and fishing. In 1970 he went there with his wife on one occasion to hunt rabbits. He thought “that if [he] ever got a chance to live permanently on Woody Island [he] would like to do so.”

          In approximately 1977 he, his wife, and children moved to the newly renovated housing at the old FAA site and stayed for six to eight months. They moved back to Kodiak for better access to schools and employment, as it was not safe to commute to Kodiak.

          He has served on Leisnoi’s Board of Directors. He referred to both the Kodiak Archipelago and Woody Island as “home.” (Exs. BIA-2B, p. 115; L-DOC-437, -438; Tr. 3083-84, 3086-88, 3092-96, 31005-06, 3112-14)

          Up through 1970, he had never lived on Woody Island but had only resided in Kodiak. His use of Woody Island was primarily recreational with adolescent friends. His only referenced use as a married adult up to that time was a single visit to hunt rabbit. This evidence shows that Kodiak, and not the alleged Village, was his permanent residence on April 1, 1970, and that he did not live for a period of time in the alleged Village in 1970.

          92. Dorothy Bactad

          She is not listed as a 1960’s resident or 1970 resident of the alleged Village in the Feichtinger Report. Nor did Koniag list her as a 1970 permanent resident. The only statement from her introduced into evidence is a 1996 unsworn interview of her.

          She is enrolled to Woody Island. The Family List shows that she listed Woody Island as her permanent residence on April 1, 1970, but listed Seattle, Washington, as her address and the place where she resided for two or more years on April 1, 1970, and Kodiak as the place where she resided for an aggregate of 10 or more years.

          She was raised in the Woody Island Baptist Mission from 1924 to 1936. She left Woody Island in 1936 and never returned. She stated that she reminisces about the island and would love to go back there. (Exs. L-DOC-46; BIA-2B, p. 88)

          She clearly was not a permanent resident of the alleged Village on April 1, 1970, and did not live there for a period of time in 1970. She has not set foot on Woody Island since 1936. This objective evidence outweighs her general statement that she “would love to go back there.” Her statement, in light of the evidence, does not show that in 1970 she had an intent to return there or was a permanent resident.

          93. Sara Chokwak

          She is not listed as a 1960’s resident or 1970 resident of the alleged Village in the Feichtinger Report. Nor did Koniag list her as a 1970 permanent resident. The only statement from her introduced into evidence is a 1996 unsworn interview of her.

          She is enrolled to Woody Island. The Family List shows that she listed Woody Island as her permanent residence on April 1, 1970, but listed Kodiak as the place where she resided for two or more years on April 1, 1970, and Old Harbor as the place where she resided for an aggregate of 10 or more years.

          She was born into the Lowell family in 1929 on Woody Island. She lived there until she was 9 years old. In 1938 she moved to Old Harbor and was still living in Old Harbor at the time of the 1964 earthquake. Up through 1970 she returned to Woody Island only twice, once in 1950 and once in 1966 to cook at Camp Woody. Referring to the 1950 visit, she wished she could have stayed there more. She also visited there in the summer of 1996.

          (Exs. L-DOC-87; BIA-2B, p. 119)

          The evidence does not show that she was a permanent resident of the alleged Village on April 1, 1970, or that she lived there for a period of time in 1970. She visited only twice in the 32 years from 1938 to 1970. This does not show that she intended to return in 1970 or that the alleged village was the center of her Native family life.

          94. Neil Sargent

          He is not listed as a 1960’s resident or 1970 resident of the alleged Village in the Feichtinger Report. Nor did Koniag list him as a 1970 permanent resident. The only statement from him introduced into evidence is a 1998 unsworn interview of him.

          He is enrolled to Woody Island. The Family List shows that he listed Woody Island as his permanent residence on April 1, 1970, but did not identify the place where he resided for two or more years on April 1, 1970, and listed Kodiak as the place where he resided for an aggregate of 10 or more years. By 1972 he was living in New York.

          His parents were born and lived their whole lives in Kodiak. He too was born and lived most of his live in Kodiak. He was born in approximately 1920. When he was a child, his mother took him to Woody Island to attend the Russian Orthodox Church. The only other times he was on Woody Island were in 1961, when he assisted in rebuilding the dock there, and sometime around 1970, when he merely set foot on the beach. (Exs. L-DOC-340; BIA-2B, p. 80; L-DOC-161, p. 280)

          The record does not show that his permanent residence was the alleged Village on April 1, 1970, or that he lived there for a period of time in 1970. His ties and visits to Woody Island have been minimal. There is no evidence that the alleged Village was the center of his Native family life, that he ever lived there, or that he intended it to be his home.

__________________

          Protestant clearly met his burden of proving that the alleged Village did not have 25 or more Native permanent residents on April 1, 1970. Other than Johnny Maliknak and Nicholas Pavloff, who were certainly permanent residents, there are only a few more Natives (such as Christina Hoen and her children) who even came close to meeting the standard of permanent residency. The record shows that there were far less than 25 Native permanent residents of the alleged Village on April 1, 1970.

          Protestant also proved by a preponderance of the evidence that the alleged Village did not met the requirement that at least 13 enrollees to the alleged Village must have used it during 1970 as a place where they actually lived for a period of time. Those enrollees who certainly lived in the alleged Village for a period of time in 1970 are Johnny Maliknak and Nicholas Pavloff. Karl Armstrong, Rudy Sundberg Jr., Christina Hoen, Cien Weeks Hoen, and Chrislyn Hoen are enrollees who qualify more likely than not. The only other enrollees who come close to qualifying are Marie Redick Unger and three of her children, Larry, William, and Robert, who stayed there for a one week-long visit. Assuming, arguendo, that they qualify, there are, at most, 11 enrollees who lived for a period of time in the alleged Village in 1970.

3.

Was the “act of God” proviso invoked?

          Respondents argue that any failure to meet the subsection 2651.2(b)(2) occupancy requirement of at least 13 enrollees having used the alleged Village during 1970 as a place where they actually lived for a period of time was excused under the “act of God” proviso by the following events: (1) the 1964 earthquake and tidal wave, (2) the closing of the school on Woody Island in 1969, (3) the FAA’s 1963 restrictions on ferry usage, (4) the Borough’s imposition of taxes on real property on Woody Island, beginning in the mid- to late-1960’s, and (5) the Vietnam War. As previously mentioned, subsection 2651.2(b)(2) contains and is subject to the “act of God” proviso. Under that proviso, the occupancy requirement is excused if an act of God or government authority within the 10 years preceding April 1, 1970, results in the temporary unoccupancy of a traditional village. Natives of Afognak, Inc., supra, at 21-23. 3

          Respondents argue that Protestant has the burden of proving not only that a state of unoccupancy existed, but also that such unoccupancy was not “temporary” within the meaning of the proviso or that there is no causal connection between the fact that an act of God or government authority occurred, and the fact that the village was subsequently unoccupied in 1970. See Natives of Afognak, Inc., supra, at 21-22. However, his burden to show that any state of unoccupancy was not “temporary” or causally connected to an act of God or government authority is dependent upon whether the “act of God” proviso was invoked. See id.; Village of Kaguyak, supra, at 29.

          Resolution of the issue of whether the proviso was invoked also effects evaluation of the issue of whether the alleged Village satisfies the requirement of 43 C.F.R. § 2651.2(b)(1), which provides that the alleged Village must have had 25 or more Native residents as of April 1, 1970. As previously mentioned, if the “act of God” proviso excuses the occupancy requirement, it would be very difficult for Protestant to prove that there were not 25 Native residents. See, e.g., Natives of Afognak, Inc., supra, at 23.

          The “act of God” proviso may be invoked either in the eligibility Determination or by a prima facie showing at the hearing of the elements necessary for its invocation. See id. Leisnoi argues that the proviso was invoked in the Area Director’s eligibility Determination based upon two facts.

          First, Mr. Fitzpatrick’s report identifies the 1964 earthquake and tidal wave and removal of the school and FAA presence in 1969 as acts of God or government authority. Second, the Area Director found in the alleged Village’s Certificate of Eligibility that it “complies with the criteria set forth in 43 CFR 2651.2(b)(2).” From these facts, Leisnoi concludes that the Area Director relied upon that portion of Mr. Fitzpatrick’s report, that the reference to the criteria of subsection 2651.2(b)(2) pertains to the “act of God” proviso, and that the Area Director invoked that proviso.

          Leisnoi’s argument cannot be sustained. The Area Director never mentioned an act of God or government authority or the “act of God” proviso in the eligibility Determination or related findings of fact. Instead, he concurred with another portion of Mr. Fitzpatrick’s report in which he concluded that the alleged Village met the occupancy requirement of at least 13 enrollees having used the alleged Village during 1970 as a place where they actually lived for a period of time. This finding obviated any need to invoke or even mention an act of God or the “act of God” proviso.

          The fact that the Certificate cites compliance with subsection 2651.2(b)(2) is reasonably explained as a reference to compliance with the actual requirements contained therein: that the alleged Village have an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life-style and that at least 13 enrollees thereto must have used the village during 1970 as a place where they actually lived for a period of time. This is precisely what the Area Director found in the eligibility Determination and related findings.

          If he had meant to invoke the “act of God” provision, he presumably would have at least mentioned an act of God or government authority and the proviso in the eligibility Determination and related findings. If such were the case, one would expect the Area Director to state in the Determination, findings, and/or Certificate that compliance with the subsection 2651.2(b)(2) requirements is excused by an act of God or government authority rather than to find compliance with those requirements.

          The eligibility Determination and related findings of fact did not invoke the “act of God” proviso. There was no need for its invocation because invocation is necessary only to excuse a temporary state of unoccupancy in 1970 and the Area Director found that the occupancy requirement had been met.

          Because the Area Director did not invoke the “act of God” proviso in the eligibility Determination, the question then becomes whether the proviso was invoked by a prima facie showing at the hearing. ANCAB has held that the “act of God” proviso may be invoked not only in the eligibility Determination, but also by a prima facie showing that the alleged Village was known as a “traditional” village, that an act of God or government authority occurred within the 10 years preceding April. 1, 1970, that the act of God or government authority caused unoccupancy of the village, and that this unoccupancy was “temporary” within the meaning of the proviso. See Village of Kaguyak, supra, at 29. The Respondents failed to make this showing.

a.

Was the alleged Village known as a traditional village?

          While there is no dispute that a traditional village once existed on the west side of Woody Island, Protestant maintains that the village must have been, but was not, known as a traditional village at the time of the alleged acts of God or government authority. He argues that “traditional village” must be construed as meaning more than simply an “historic village’ or any unoccupied place that once had been the site of a traditional village. According to Protestant, the requirement “known as a traditional village” must be construed as requiring, at the very least, that, at the time of such acts, the village must have had an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life-style, must have constituted a “Native village” within the meaning of Section 3(c) of ANCSA, and must have been used by at least 13 enrollees as a place where they lived for a period of time. Respondents provided no arguments that directly respond to Protestant’s contentions.

          Protestant’s contentions cannot be sustained. The alleged requirements are used to determine whether a village is eligible as of April 1, 1970. A place may be known as a traditional village yet not meet the eligibility standards for a period immediately preceding the acts of God or governmental authority.

          Subsection 2651.2(b)(2), as originally proposed, stated, “The village must have been in existence as an established village on April 1, 1970, and separate and not connected with or a part of a city, town, or other identifiable community settlement.” 38 Fed. Reg. 6504, 6508. The reasons for the change in the language are not published, but a reasonable guess can be made. Both the phrase “evidenced by occupancy consistent with the Natives’ own cultural patterns and life style” and the phrase “known as a traditional village” appear to be substitute language for “separate and not connected with or a part of a city, town, or other identifiable community settlement.” The apparent purpose of the language is to distinguish a community defined by Native cultural patterns and life-style from other communities.

          A more basic question is whether it was actually known as a community or village at the time the alleged acts of God or governmental authority occurred. The nature and extent of occupancy or unoccupancy during the period preceding such acts may be such that a place is not known or is no longer known as “traditional” or as a “village”.

          The evidence shows that the alleged Village was known as a traditional village at least until the end of World War II and that by the late-1960’s it was no longer known as a village. Numerous witnesses and reports dealing with Native villages in the area did not recognize the alleged Village as a Native village by that time (see Subpart 4 of this Part below). Sometime between 1945 and the late-1960’s the alleged Village ceased to be known as a village. That point in time is difficult to pinpoint.

          The weight of the evidence shows that it was not known as a village in 1963 when the first alleged act of God or governmental authority occurred. The alleged Village is not mentioned in a Government report “to evaluate the extent and nature of damage to the communities on Kodiak Island and the islands nearby [caused by the 1964 earthquake].” (Ex. L-BOOK-80) The authors investigated the effects in May and July of 1964 and were clearly aware of the existence of Woody Island because the island is mentioned twice. The omission of the alleged Village strongly suggests that it was no longer known as a community or village. Respondents own witness, Bruce Robertson, testified that no village existed on Woody Island in 1959 or 1960 (Tr. 1725-26). Consequently, Respondents failed to make a showing that the alleged Village was known as a traditional village.

b.

Did the occurrence of one or more acts of God or government authority between April 1, 1960 and April 1, 1970 cause a temporary unoccupancy of the village in 1970?

          Respondents also failed to make a showing that the occurrence of one or more acts of God or government authority during the 1960’s caused the unoccupancy of the village in 1970 or that the unoccupancy was temporary. The beginnings of the depopulation of the island can be traced back at least as far as the Katmai eruption of 1912 and Spanish flu epidemic of 1918. From 1910 to 1920 the population, including Mission children, decreased from 168 to 104. In the 1920’s the population stabilized before once again plummeting in the 1930’s to 54 due, in large part, to the relocation of the Mission to Kodiak.

          The lure of better opportunities for employment, schooling, medical services, and other amenities also contributed to the relocation of Woody Island’s population to Kodiak and other places. With the initiation of construction of the Naval base near Kodiak in 1939, Kodiak experienced a boom in employment opportunities and amenities which attracted Woody Islanders there, especially with the closing of the Woody Island school in 1943. By 1944 Woody Island’s population was down to 37.

          Long-time residents Ella Chabitnoy and Natalie Simeonoff both acknowledged the exodus from Woody Island preceding World War II. Natalie compared the exodus to the depopulation of rural areas in the Lower 48 States in that people gradually became less dependent on the land for subsistence, buying more and more of their food, and eventually moved to the cities to earn a living.

          By 1950 the population had risen to 111, but this rise coincided with the influx of FAA personnel and their families. By the mid-1950’s there were 21 FAA families and only 4 Native families, including the Simeonoff’s, Harmon’s, and Chabitnoy’s.

          The Simeonoff’s left in 1956 because Kelly Simeonoff, Sr. lost his job with the FAA on Woody Island. The Harmon’s left in 1959, with most of them eventually moving to the State of Washington because Nettie’s husband James Hartle got a better job there and the other family members followed them. The population was further decimated in the late-1950’s by the occurrence of several tragedies, including the deaths of Mike Chabitnoy, Edison Fadaoff, Sr., Stephan Maliknak, Paul Wolkoff, and Nicolai Maliknak.

          By 1960 there were, at most, 20 consistent residents of Woody Island, including Angeline Maliknak, Herman Ponchene, Nicholas Pavloff, Sr., possibly Natalie Ponchene, possibly Johnny Ponchene, Mary Ponchene Pavloff, Edison Fadaoff, Jr., Joseph Fadaoff, Johnny Maliknak, William Wilfred Pavloff, Agnes Frump, Mary Anne King, Harold King, Brenda Pajurkin a.k.a. Frump, Ella Chabitnoy, Mickey Chabitnoy, Cecil Chabitnoy, possibly Buddy Fadaoff, and James Fadaoff. Additions to the population in the early 1960’s included William Pavloff, born in 1961, and some of the Simeonoffs who returned for a year or two before leaving again before the 1964 earthquake.

          By the time of the earthquake more subtractions had occurred. Agnes Frump had died and her children, Mary, Harold, and Brenda, went to live elsewhere, Ella and Cecil Chabitnoy had already relocated to Kodiak, and Buddy Fadaoff had relocated to the State of Washington. No one left the island as a result of the earthquake, but, rather, Christina Hoen and her family moved back for 8 months. Nettie, Ernie, and James Hartle also returned very briefly.

          From 1965 to 1967 additional tragedies or infirmaries resulted in further losses of population: Angeline Maliknak retired to a nursing home in Seward because of ill health and her partner, Herman Ponchene, left as well; Mary Ponchene Pavloff died and the children under her care, Edison Fadaoff, Jr., Joseph Fadaoff, and William Pavloff left; William Wilfred Pavloff drowned; and James Fadaoff left after killing his common law wife, Rosemary Chilliak. The only consistent residents thereafter were Nick Pavloff and Johnny Maliknak.

          The argument that the alleged Village was temporary unoccupied as a result of one or more acts of God or government authority is simply not supported by the evidence. The record is replete with evidence and statements that tragedies and the lack of employment opportunities on Woody Island were the primary causes of the depopulation and abandonment of the alleged Village.

          Regarding the first alleged act of government authority, the announcement of restrictions on the use of FEDAIR IV in 1963, the evidence shows that, after the announcement, the ferry was still officially available to non-FAA regular residents of Woody Island and available in practice to other non-FAA Natives. Despite the availability of the ferry service during the 1960’s, the population of the alleged Village continued to dwindle.

          There simply was no testimony or statements from the Natives that the alteration, if any, in the availability of the ferry service caused them to leave or discouraged them from returning to the alleged Village. Maurice Harmon, Paul Harmon, and Mitch Gregeroff all stated that the termination of the ferry service was one of the factors influencing their decisions not to return to Woody Island, but the termination of the service occurred after 1970.

          Numerous Natives stated that they left or did not live on Woody Island because of the lack of employment opportunities, and it is reasonable to infer from the statements of at least some of them that re-initiation of a ferry service to provide access to employment in Kodiak might cause them to move back to Woody Island. These statements only highlight the fact that, many years prior to 1970, nearly all of the potential permanent residents of Woody Island had joined the modern cash economy and adopted non-Native life-styles of full-time residency and employment in one particular place, and that place was not Woody Island.

          Lastly, any restriction on use of the ferry service is simply not an act of government authority within the meaning of the regulations. The alleged Village was a village long before the CAA/FAA began the ferry service in the late 1940’s. Throughout its history the island has remained accessible and has been accessed by skiff or dory by many people, at least during good weather. The provision of the ferry service was a special service not generally available to other Native villages or part of the Natives’ traditional cultural patterns and life-style. Any cutback on its availability is not akin to actions which prompted inclusion of the “act of God” proviso in the regulations: the government relocations of Natives living in areas devastated by the 1964 earthquake and tidal waves

          The next alleged act of God is the 1964 earthquake and tidal waves. That event truly is an act of God, but it did not cause the unoccupancy of the alleged Village. No one left the island as a result of the earthquake, but, rather, one or two families actually returned shortly thereafter to stay for many months. At most, there is evidence that a few Natives (Maurice Harmon, Paul Harmon, and Mitch Gregeroff) may have been influenced by the effects of the earthquake in deciding not to return to Woody Island to live.

          There is no doubt that the 1964 event rendered Woody Island more difficult to access. The western shoreline subsided, making it more difficult to beach boats, and the dock was destroyed and replaced by one which was more exposed to strong currents and tides, rendering it less safe for mooring boats.

          However, the record does not show that these changes in the degree of difficulty of access caused the unoccupancy of the alleged Village. Throughout its history, Woody Island has lacked a safe harbor or moorage. It has always been difficult to access Woody Island in winter or bad weather, as the passage to and from Kodiak is dangerous in a small boat and there is no safe place to moor a larger boat, especially overnight. In warm or good weather it has remained accessible by boat from Kodiak or elsewhere. Small boats could be and were often pulled up on the beach both before and after the earthquake. Also, boats could be and were moored by anchors and running lines to the beach. The change in access was simply not very substantial or significant.

          More importantly, the record lacks substantial evidence that the change caused Natives to leave the alleged Village or to not return. The difficulties of traveling to and from Kodiak to access employment opportunities and other amenities available in Kodiak existed long before the earthquake. The pursuit of those opportunities and amenities led most of the Natives off of Woody Island prior to the earthquake. The incremental change in access had little effect on the Natives’ decisions whether to remain on or return to the alleged Village.

          The earthquake also converted the freshwater Lower Lake into a saltwater lagoon and temporarily destroyed the clam beds on the island. Respondents argue that the Natives had relied upon the Lower Lake for water and the clam beds for food. The record shows that any such reliance was unsubstantial and insignificant and that these alterations did not cause the unoccupancy of the alleged Village.

          The running water system drew water from the Upper Lake, as it had better water than the Lower Lake even prior to the earthquake. Where the system was not available or functioning, either before or after its construction, the Natives relied upon the Upper Lake and wells, and not the Lower Lake, for water. No potential permanent resident of Woody Island stated that the conversion of Lower Lake into a saltwater lagoon effected the decision of whether to remain on or return to the alleged Village.

          Several Natives testified that the clam beds were a seasonal and insignificant source of food (see, e.g., Tr. 1033-34, 2754-56). Further, Mitch Gregeroff testified that the clam beds recovered after a year or so (Tr. 1412). No potential permanent resident of Woody Island stated that the temporary loss of the clam beds effected the decision of whether to remain on or return to the alleged Village.

          Assuming that the damage to the running water system was caused by the earthquake, the statements or testimony from the Natives does not show that the earthquake damage to the water system caused the unoccupancy of the alleged Village. Before examining that evidence, it is worth noting that the alleged Village was well-populated prior to World War II without a running water system. The Natives relied upon wells and the Upper Lake for water. Many Natives lived in the North Village at various times, including Johnny Maliknak and Nicholas Pavloff up through 1970, yet the North Village has never had running water. There is no evidence to suggest that they could not have reverted to relying upon wells and lake water.

          Also, the remedy for the earthquake damage to the water system was to cap the end of the 6- to 8-inch pipeline leading to the dock (Tr. 1448). Paul and Maurice Harmon tried in some undisclosed way to plug the line but failed (Tr. 1449). There is no other evidence to show whether fixing the line would have been expensive or difficult.

          Christina Hoen addressed the damaged water system in an affidavit. She and her family returned to the alleged Village after the earthquake, but, according to Christina, they decided to leave within 8 months primarily because the Simeonoff house no longer had running water. In a deposition, however, she dismissed as “no big situation” the difficulty of living on Woody Island at that time with an “erratic” water supply, because “there are quite a few wells and springs over there that have been there for years and a good supply of fresh water.”

          Further, she testified that she and her family were not living on Woody Island in 1970 because of the lack of employment opportunities. Both she and her husband were concerned with the difficulty of commuting from Woody Island to work in Kodiak. She would return to Woody Island to live if the circumstances were right, i.e., if their employment and earnings were such that it was feasible and affordable to do so.

          Maurice Harmon, Paul Harmon, and Mitch Gregeroff all stated that the lack of a functioning running water system was one of the reasons they had not returned to Woody Island to live, despite the fact that the Harmon house had a well. Another reason cited by all was the lack of employment opportunities. Many other Natives also referenced the lack of employment opportunities as the reason they had not returned to Woody Island, making no mention of the damaged running water system.

          Respondents allege that the earthquake also reduced employment opportunities for potential permanent residents of Woody Island. Mitch Gregeroff, who had been living and working in a cannery in Kodiak in 1964, did state that he moved to the State of Washington for employment when the Kodiak Island canneries were wiped out by the earthquake and tidal waves. However, by 1966 there were 18 seafood plants in Kodiak and 8 more at other points on Kodiak Island where he could have sought employment. More importantly, from 1964 to 1969 he actually continued working in Alaska as a commercial fisherman for nine months of each year. Yet, for the other three months he returned not to Woody Island, but to Washington State, where his wife and child resided full-time. There is no substantial evidence of earthquake-caused reductions in employment opportunities inducing Natives to leave Woody Island or to refrain from returning there to live.

          Another alleged act of government authority is the imposition of property taxes by the Borough of Kodiak Island, beginning in the mid- to late-1960’s. Assuming that this taxation is an act of government authority within the meaning of the regulation, there is little or no evidence that the taxation caused the unoccupancy of Woody Island on April 1, 1970.

          The Borough was created shortly after the 1964 earthquake, probably in the fall of 1965 (Tr. 2920; Ex. S-6I, p. 17), and the alleged Village was nearly deserted by the time that the taxation began. Wilton White, the head of the Borough for many years, testified by deposition that only two or three properties on Woody Island were being taxed and that one of them was the property of the Chaffin’s (id., p. 31). Evidence of Native property being taxed is limited to the Sundberg, Fadaoff/Madsen, and Simeonoff houses. The unpaid taxes on the Fadaoff/Madsen house amounted to only $365.00 by the early 1970’s.

          Esther Sundberg Denato testified that the Pavloffs deeded whatever interest they had in the Sundberg homesite to her father and that she believed the Borough eventually foreclosed on that property for failure to pay taxes (Tr. 2854-55). The context of her testimony suggests that this occurred in the late-1970’s. Neither she nor any other Native testified that they left the alleged Village or did not return to the alleged Village during the decade ending in 1970 because of the Borough’s taxation.

          The Vietnam War is another alleged act of government authority. As a result of their participation in the war, Daniel Harmon and Freddy Simeonoff were killed and have not been claimed by Respondents as permanent residents of the alleged Village. If there was evidence that they were drafted, as opposed to having enlisted, there might be a legitimate argument that the war was an act of government authority within the meaning of the regulation. There is no such evidence.

          Finally, Respondents claim that the closing of the Woody Island school in 1969 was an act of government authority. They also make passing reference to the adverse effects of the related closing of the FAA facility and ferry service, alleging that the FAA’s closing deprived Natives of employment opportunities.

          The record shows that neither the school closing nor the closing of the FAA facility and ferry service caused the unoccupancy of Woody Island on April 1, 1970. The termination of the FAA ferry service had no bearing upon the unoccupancy on April 1, 1970, as the service did not terminate until after that date.

          Nor did the FAA facility closing have any bearing, as it was not a significant source of employment for local Natives and did not close until after 1970. There were still seven or eight FAA families living and working on Woody Island on April 1, 1970 (Tr. 656). More importantly, the record shows that, throughout its existence on Woody Island, the FAA hired only one local Native for a full-time position (Tr. 2748; Ex. S-6D, pp. 19-20). That Native was Kelly Simeonoff, Sr. (Tr. 2748), who left FAA employment in 1956. 4 The only evidence of local Natives being employed by the FAA in the 1960’s is the short-term, temporary hiring of a few Natives to assist in clearing land for construction of the VORTAC facilities in 1963 and 1964.

          An affidavit was submitted with Leisnoi’s application which was executed by numerous Natives and which states that the school closing caused the unoccupancy of Woody Island in 1970. In contradiction to this affidavit, the affiants also submitted affidavits attesting to their occupancy of Woody Island in 1970, thus discrediting all of the affidavits. One affiant, Marie Redick Unger, corrected herself in a deposition, testifying that the closing of the school was not the reason why she had not returned to Woody Island (Ex. S-6L). Another affiant, Karl Armstrong, testified by deposition that he was not aware of anyone who left Woody Island or who would not return because of the school closing (Armstrong Depo., pp. 64-65, 79-80).

          Fred Zharoff, who was raised in Kodiak and lived on Woody Island for only a few months in 1977 during renovation of the FAA housing, testified that he moved back to Kodiak for better access to schools and employment. However, there is no indication that he or any other Native would have lived on Woody Island during the year between the closing of the Woody Island school and April 1, 1970, if the school had remained open. No non-FAA Native had attended the school since approximately 1965 and the alleged Village was nearly deserted by the time the school closed in May of 1969.

          In summary, Respondents failed to make a prima facie showing that any acts of God or government authority, individually or in combination, caused the unoccupancy of Woody Island on April 1, 1970, or that the unoccupancy was temporary. Consequently, the “act of God” proviso was not invoked and does not apply. Therefore, the alleged Village must meet the occupancy requirement of 25 C.F.R. § 2651.2(b)(2) and evidence of unoccupancy during the decade ending in 1970 is material and relevant to the determination of whether there were 25 or more permanent residents of the alleged Village on April 1, 1970.

4.

Did the Village, as of April 1, 1970, constitute a “Native village” and have an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life-style?

          Protestant contends that the alleged Village did not meet the requirement of 43 C.F.R. § 2651.2(b)(2), that “[t]he village shall have had on April 1, 1970, an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life style * * *.” Protestant correctly argues that this requirement is related to another requirement: that the alleged Village must have constituted an established “Native village”, i.e., a “tribe, band, clan, group, village, community, or association” within the meaning of the Section 3(c) of ANCSA, 43 U.S.C. § 1602(c), which defines “Native village”. See Bureau of Sport Fisheries & Wildlife v. Village of Salamatoff, ANCAB VE 74-12 (June 9, 1974) at 5, 8-16. He contends that the alleged Village failed to meet this requirement as well.

          Protestant is correct that, as of April 1, 1970, the alleged Village failed to meet the requirements of being a “Native village” and having an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life-style. Numerous witnesses, most familiar with the characteristics of other Native villages, including several Natives, and a Leisnoi Director, Bruce Robertson, testified that no Native village or active community existed on Woody Island in 1970 or even earlier (see, e.g., Tr. 103-06, 193, 244, 294-98, 631-32, 646, 649, 1725-26, 2013, 2091, 2403; Exs. L-DOC-132; S-6E, pp. 10, 30-31; S-6I, pp. 9-10).

          Consistent with the assessment of these witnesses, several studies and reports, including studies commissioned by Congress for purposes of ANSCA, indicated that the alleged Village was not an existing Native village by 1970, and did not have 25 Native residents. “Alaska Natives and the Land”, Exhibit S-1, dated October 1968, was prepared by the Federal Field Committee for Development Planning in Alaska, and was commissioned by Congress in anticipation of ANCSA. It was subsequently adopted as an appendix to the Senate Report issued by the Senate Commitee on Interior and Insular Affairs for Senate Bill 35. See Senate Report No. 92-405, 92nd Congress, 1st Session, at 73-74. The publication was prepared and used for guidance in drafting the provisions of ANCSA itself.

          The publication contains a section on villages in the Kodiak region. Figure III-66, on page 249, contains a table showing the “Historic Native Places and Current Status” of places in the Kodiak Region. Leisnoi is listed in the table – along with a notation in the column labeled “Abandoned.” Figure III-67, on page 250, contains a map showing the location of “Historic Native Places [in the] Kodiak Region.” The map shows 20 “historic” Native places in and around Kodiak Island – including Leisnoi (spelled “Leisnoi”). Figure III-68, on page 251, contains a map showing “Current Places with Native Population [in the] Kodiak Region.” The map shows 8 places in and around Kodiak Island with current Native populations. Leisnoi is not included. The publication also includes a large, fold-out, map of Alaska, showing the location of Native and non-Native places having a Native population of 25 or more. The map shows 8 places in and around Kodiak Island having a population of 25 or more Natives. Again, Leisnoi is not included.

          The Federal Field Committee for Development Planning in Alaska prepared another publication dated 1967 and entitled “Villages in Alaska and other Places Having a Native Population of 25 or More.” (Ex. S-2) The preface states that it is a compilation of villages and places having 25 or more persons, half or more of whom are Natives, as well as places that are predominantly non-Native but which have a Native population of at least 25. The preface also states that the principal source for its Native population estimates was the Bureau of Indian Affairs, but that the estimates were also measured against figures provided by leaders of Native organizations, the Alaska Office of Economic Opportunity, VISTA, the Public Health Service’s Division of Indian Health, Alaska State Community Action Program, and other agencies, as well as against Native school enrollment figures provided by the Bureau of Indian Affairs and the Alaska Department of Education. The publication’s “Alphabetical Directory” lists seven villages within the Kodiak Island Borough, but does not include Woody Island or Leisnoi. The Census Directory” similarly lists Kodiak and identifies six villages in the Kodiak area, but does not include Woody Island or Leisnoi.

          Woody Island is listed as an island in the Government publication “Dictionary of Alaska Place Names,” dated 1967 (Ex. L-BOOK-65). However, it is not also listed as a “village,” “town,” or “locality,” as are other villages, towns and localities listed in the publication. Similarly, in the publication “Effects of the Earthquake of March 27, 1964 on the Communities of Kodiak and Nearby Islands,” prepared for use by the Department of Interior, Geological Survey (Ex. L-BOOK-80). Woody Island is not included as a “community,” nor is it listed in the tables or on the “Index map showing location of communities on Kodiak Island and nearby islands,” even though the Island itself in shown on the map (id., at F3, F4).

          According to the witnesses, the alleged Village, unlike most other Native villages, had no church, stores, post office, fuel supply, consistent population, or Native, tribal, or village association, government, or chief. Mr. Wooley acknowledged that other villages had such infrastructure (Tr. 2303-04).

          The alleged Village merely had less than a half-dozen houses which weren’t being occupied with any frequency or consistency and generally were not well-maintained by 1970. Mr. Wooley referenced the houses as evidence of the alleged Village’s identifiable physical location, but the existence of several houses, without more, does not constitute the location of a community with social, economic, and cultural ties.

          Mr. Wooley de-emphasized the presence of physical structures when addressing the absence of a church building on Woody Island since 1951. He testified that faith relates to a community of people and not a physical structure (Tr. 2171).

          Both he and Dr. Davis stressed the importance of the Russian Orthodox Church in Native culture as a religious, social, and political institution. Yet, they did not adequately come to grips with the fact that church-related social and religious activities and ceremonies, such as masquerading and caroling, occurred infrequently, if at all, on Woody Island after World War II.

          In general, there is little evidence of communal activities on Woody Island after World War II. Karl Armstrong testified as to the importance of banyas (steambaths) as a place for socializing (Armstrong Depo., pp. 124-27) and there is conflicting evidence as to whether the banyas on Woody Island were used much. Without reference to a time period, Joseph Fadaoff, born in 1954, testified, “I’m sure a lot of people used [banyas].” (Tr. 1039). On the other hand, Patricia Hampton, born in 1948, testified that the banyas on Woody Island were not used after 1958 (Ex. S-6O, pp. 37-38). Mr. Armstrong also testified as to the social significance of the practice of chipeting, but the evidence of this practice occurring after World War II is limited to his testimony that he, Charles Naughton, and Ed Hall chipetted a few times. Joseph Fadaoff also testified as to “a lot of visiting” among the extended family in the South Village area (Tr. 1046). However, most of the people living there left before the 1964 earthquake. Zelma Stone was not aware of any regular meetings or congregations of Natives in the alleged Village (Tr. 494).

          Numerous witnesses testified, in effect, that there was no regular or substantial Native activity, such as occupying the Native houses, camping, picnicking, hunting, fishing, or berry picking, from the mid-1960’s through 1970 (see, e.g., Exs. S-6D, pp. 37-38, 42, 51; S-6O,pp. 21-22; Tr. 414, 416, 424, 461, 633-34). While those activities did occur, the nature and extent of those occurrences was not sufficiently substantial to support a conclusion that a community still existed there by the mid-1960’s.

          Dr. Davis testified in 1998 that smaller villages tend not to have churches any longer, but she did not specifically address whether this was the trend in 1970 (Tr. 3646, 3649). She did acknowledge that in the 1960’s most Native villages had both a formal male chief and a lay leader connected with the church (Tr. 3608-10). The alleged Village had neither after World War II.

          Dr. Davis pointed to the leadership or elder status of Ella Chabitnoy in the South Village and Angeline Maliknak in the North Village in the early 1960’s, but there was no conjoining of that leadership into a clan. In fact, Dr. Davis testified that the South Villagers and North Villagers were not necessarily cognizant of the activities of each other (Tr. 3489). Further, both Ella and Angeline had moved off of Woody Island many years before 1970.

          Dr. Davis acknowledged that there were dissimilarities between the alleged Village and other Native villages but she concluded that there were more similarities than dissimilarities (Tr. 3650). However, she did not support her conclusion with any enumeration of the similarities.

          She did compare the alleged Village to the Village of Chitina, which, according to ANCAB, did have an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life-style. Holdsworth v. Village of Chitina, ANCAB VE 74-10 (June 10, 1974) at 25-26. She testified that Chitina had 237 enrollees but only 2 full-time residents (Tr. 3647). The numbers are similar for the alleged Village in 1970.

          ANCAB described the Chitina Natives and their historical cultural patterns as follows:

          The Chitina Natives are part of a sub-dialect culture called Ahtna which is part of the larger Athapascan Linguistic Group * * *. Historical documents show that these Natives have inhabited the Copper River valley [where the alleged village site is located] at least as early as the late 18th century * * *. Their cultural patterns and life styles reflect a migratory existence based primarily on hunting, fishing, berry picking and trapping for personal and tribal subsistence * * *. Although the Natives lived a dispersed and migratory existence, they would nevertheless come together in the spring at fishing stations along the Copper River * * *.

          Village of Chitina, supra, at 25-26.

          Dr. Davis testified that nearly half of the Chitina Natives were living in Anchorage, Alaska, by 1970 for reasons similar to those which motivated the alleged Village Natives to live in Kodiak and elsewhere: economics, schooling, and modern amenities (Tr. 3648). She testified that the pattern of village visitation for the Chitina Natives and the alleged Village Natives were very similar (Tr. 3648).

          However, she did not describe how they were similar other than to say that the visitors would stop to say “hello” to persons such as Nick Pavloff and Johnny Maliknak (id.) – an apparent reference to any full-time residents. In actuality, the cultural and visiting patterns were not similar.

          Dr. Davis spoke of the seasonality of use of Woody Island, but historically Woody Island was the site of a village with scores of full-time or near full-time residents rather than a place, such as Chitina, where the Natives came together only seasonally. Further, once the alleged Village Natives abandoned the village site many years prior to 1970, they did not “come together” there. The record shows that there were no congregations of a substantial portion of the alleged Village Natives each year or even sporadically. Those that did visit typically came individually or in very small groups, irregularly and infrequently, and primarily for recreational rather than subsistence purposes.

          The evidence shows that this use was not occupancy consistent with the alleged Village Natives’ own cultural patterns and life-style. It was not consistent with the historical use of the alleged Village as a site of long-term residency by scores of Natives. While it might be consistent with those Natives’ cultural patterns and life-style for the alleged Village to evolve from a sight of long-term residency into a site of seasonal occupancy for subsistence purposes, the actual use of the alleged Village site for many years preceding 1970 was not seasonal “occupancy” nor primarily for subsistence purposes.

          In actuality, nearly all the alleged Village Natives simply shifted the site of their long-term residency from the alleged Village to Kodiak or other places. Their social, cultural, and economic ties became centered in Kodiak and elsewhere. The nucleus of community, group life, or association was not at the alleged Village.

          When questioned whether the alleged Village had a location evidenced by occupancy consistent with the Natives’ own cultural patterns and life-style, Dr. Davis replied affirmatively, explaining that “[i]t would be consistent with the Native sense to have a place that you were born, a place that you had an identity with.” (Tr. 3515) Her explanation has little to do with the character or nature of the alleged occupancy but much to do with the choice of location.

          The nature of their use of the alleged Village for many years prior to 1970 may be likened to use of a favorite park or picnic spot. They went there primarily on day trips for recreation. The use was not peculiar to their Native cultural patterns and life-style but similar to the use of the island by non-Natives. The Natives had adopted a non-Native life-style and used (not occupied) the alleged Village site accordingly.

          Quoting ANCAB’s Decision in In re Eyak, Koniag correctly argues the concept of the “Natives’ own cultural patterns and life-style”

          cannot be interpreted to contemplate exclusively the cultural patterns of Alaska Natives existing before contact with Caucasians. Such an interpretation could possibly exclude from benefits every village listed in the act, for the patterns of life in all such villages have been modified by the influence of non-Native culture. Accordingly, the character of occupancy of an area in terms of native cultural patterns and lifestyle must be assessed in the light of conditions existing in 1970 and the historical influences under which such conditions developed.

          * * * * * * *

          [T]raditionally Native activities and customs, such as berry picking, subsistence hunting and fishing, and the use of bonyas * * * are not rendered less Native in character merely because, in 1970, non-Natives also engaged in them.

Id. at 32-33. On the other hand, as previously mentioned, erosion of Native cultural patterns and the gradual adoption of non-Native customs, technology, and the like, including long-term residency in another place, may be evidence of abandonment of the alleged village and life-style associated with “home”.

          The record shows that the Natives largely abandoned a life-style of subsistence activities and the use of bonyas as a social custom, and adopted a non-Native life-style, particularly with respect to their use of the alleged Village. By no later than the mid-1960’s, they used it primarily for recreation and did not engage in substantial subsistence or communal activities there. The practice of the Russian Orthodox religion at the Village of Eyak was considered a distinguishing characteristic of the Native culture there. Village of Eyak, supra, at 32-33. No such practice occurred on Woody Island during the decade ending in 1970.

5.

          As of April 1, 1970, were the majority of residents of the alleged Village Native?

          Finally, Protestant contends that the alleged Village did not meet the requirement that “a majority of the residents must be Native.” 43 C.F.R. § 2651.2(b)(4); see also 43 U.S.C.

          § 1610(b)(3). He argues that only Natives who are enrolled to the alleged Village qualify in determining if a majority of the residents are Native, citing Village of Eyak, supra, at 35-36. Whether or not that case stands for the proposition argued, it appears inconsistent with the holding in Koniag, Inc. that a Native need not be an enrollee of a village to qualify as a permanent resident thereof. 405 F.Supp. at 1373-74. Consequently, Protestant’s argument is rejected.

          His contention that the alleged Village did not meet the Native majority requirement is also rejected. While there were very few Native residents as of April 1, 1970, there were no non-Native residents and therefore a majority of the residents were Native.

E.

Should the hearing be reopened to allow Respondents further opportunity to present evidence on the subjective intent of potential permanent residents of the alleged Village?

          Leisnoi, at pages 151-52 of its posthearing answering brief, states:

          [At] [p]ages 163 through 165 of his Opening Brief, Stratman argues that persons who had not lived in the Native Village of Woody Island for an extended period of time cannot be found to be permanent residents of the Village unless they gave direct testimony of their subjective intent. * * *

          This Court allowed only two weeks of testimony for the hearings in this case. Half of that time was given to the Protestant. Woody Island therefore only had one week of time in which to call witnesses. If the Court were to accept Stratman’s theory that only persons who testified live can be deemed to be permanent residents of Woody Island, unless they had lived on the island year-round, then the hearings should be reopened to give the Native Woody Islanders a reasonable opportunity to present many more witnesses.

          * * * * * * *

          * * * [I]f the Court is inclined to go along with the Protestant’s theory, then due process would require that the Native Woody Islanders be given a reasonable opportunity to present testimony from many more Leisnoi shareholders.

          Because Leisnoi characterizes Protestant’s theory in two different ways, it is impossible to determine precisely what it finds objectionable. Nevertheless, this Recommended Decision does not purport to adopt either characterization, but, rather, to assess a multitude of factors and types of evidence in determining whether there were 25 or more permanent residents of the alleged Village as of April 1, 1970. For this reason, Leisnoi’s suggestion that the hearing should be reopened is denied.

          It is denied for the additional reason that Leisnoi was afforded ample opportunity to present evidence at the hearing. The hearing schedule was established by the consensus of all parties. If Leisnoi felt that it needed additional time to present evidence, it should have made that request at an earlier date.

          In an April 24, 1998, letter to the parties, I noted,

          Based on motion, and my understanding of the consensus, the hearing will be held in Anchorage on August 4 through 7, and in Kodiak on August 10 through 13, 1998. Further Anchorage hearing could be held on August 14, if that would serve a useful purpose. If any party has serious difficulty with this scheduling, he should notify the other parties and me by return mail.

          In a May 13, 1998, letter to the parties, I stated:

          As it stands now, we are to have hearings in Anchorage August 4 through 7, and 14, and in Kodiak August 10 through 13 (with a viewing August 8 or 9). At this point, it appears it may be beneficial to commence the hearing in Anchorage on Monday, August 3, particularly if this could mean the difference between completion of the hearing in this 2 week span or not. Your suggestion in this regard will be appreciated.

          Pursuant to the parties’ subsequent suggestions, the date for commencement of the hearing was revised to August 3, 1998, by Order dated July 15, 1998. With the addition of another day for hearing and typically extended hours for hearing each day, the hearing actually concluded several hours earlier than anticipated on August 14. At that time the parties were asked if they had any additional evidence to present and both Leisnoi and Koniag and indicated that they had completed their presentation of evidence (Tr. 3658-63).

V.

          Conclusion

          Without further belaboring this Recommended Decision with additional references to contentions of fact and law, I hereby advise that all proposed findings or conclusions submitted by the parties have been considered and, except to the extent they have been expressly or impliedly adopted herein, they are rejected on the ground they are, in whole or in part, contrary to the facts and law or are immaterial.

          Based upon the foregoing, it is ordered that the alleged Village be certified as not eligible for benefits under sections 14(a) and (b) of ANCSA because:

          (1) The alleged Village did not have 25 or more Native residents on April 1, 1970,

          (2) The alleged Village, as of April 1, 1970, was not an established Native village and did not have an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life-style, and

          (3) Less than 13 enrollees to the alleged Village used it during 1970 as a place where they actually lived for a period of time.

/signed/
Harvey C. Sweitzer
Administrative Law Judge

INFORMATION REGARDING FILING OF OBJECTIONS TO RECOMMENDED DECISION

          Pursuant to Page 11 of the Board’s November 21, 1997, Order, a copy of this Recommended Decision is served on each party and each shall have 30 days from receipt of the decision within which to submit briefs to the Board registering their objections to the decision. Those briefs should also address any legal issues considered by the parties to be case dispositive.

          Respondents have all moved for additional time within which to submit said briefs to the Board. No ruling is made thereon because the Board established the 30-day deadline and any such motion should be directed to and decided by the Board.

          See page 101 for distribution.

Distribution By Certified Mail:

Michael J. Schneider, Esq.
Law Offices of Michael J. Schneider, P.C.
880 “N” Street, Suite 202
Anchorage, Alaska 99501
(Attorney for Omar Stratman)

Robert L. Breckberg, Esq.
Edgar Paul Boyko and Associates
711 H Street, Suite 510
Anchorage, Alaska 99501
(Attorney for Leisnoi, Inc.)

John R. Fitzgerald, Esq.
McAlpine, Peuler & Cozad
701 South Peters Street, Suite 300
New Orleans, Louisiana 70130
(Attorney of Leisnoi, Inc.)

R. Collin Middleton, Esq.
Middleton & Timme, P.C.
421 West First Avenue, Suite 250
Anchorage, Alaska 99501
(Attorney for Koniag, Inc.)

James R. Mothershead, Esq.
Office of the Regional Solicitor
U.S. Department of the Interior
4230 University Drive, Suite 300
Anchorage, Alaska 99508-4626
(Attorney for the Bureau of Indian Affairs)


Footnotes

          Footnote 1– In the 1980’s ANCAB was eliminated as a separate Departmental Board and its functions were merged with IBLA.

          Footnote 2– Mr. Armstrong’s 1978 Deposition was admitted by stipulation. His own testimony shows that Woody Island was not his usual place of residence as of April 1, 1970, and that he did not live there since 1963. Rather, he lived in Kodiak, did not visit Woody Island from 1963 to 1967, and spent approximately 35 days there in 1970.

          Footnote 3– The proviso does not excuse the requirement that the alleged Village must have had 25 or more Native residents as of April 1, 1970, Bureau of Sports Fisheries & Wildlife v. Village of Kaguyak, ANCAB VE 74-9 (June 10, 1974) at 31, nor does it excuse the requirement that the alleged Village must have an identifiable location. Village of Litnik, supra, at 4.

          Footnote 4– If “local” is defined as the Kodiak Archipelago, then another local Native, Bill Torsen from Ouzinkie, worked full-time for the FAA from 1962 to 1966 (Tr. 2062-64).


          Thank you to the U.S. Department of Interior Office of Hearings and Appeals for providing a copy of the recommended decision in electronic format. Although based on the copy provided by the U.S. Department of Interior Office of Hearings and Appeals, this version is not authoritative. The format was modified for publication on the world wide web. Persons intending to rely on the recommended decision should review the written recommended decision.