Alaska Law Blog

The Alaska Supreme Court yesterday ruled that two elders' benefit programs of an ANCSA Regional Corporation were valid. Atkinson, Conway & Gagnon handled the case for the winning side. The case is Bodkin v. Cook Inlet Region, Inc. The Court held that CIRI's elders' programs were authorized under Section 7(r) of ANCSA and that no constitutional challenges to the programs could be sustained.

The ruling gives me a chance to toot my own horn over a job well done in the appellate court because I wrote the brief and argued the case. BLAAAPPP! (Sorry. My horn is strained a bit from driving around with all the other knuckleheads out there this winter.)

The Court's decision was especially gratifying since I was already on record as saying the Court would rule this way. I spoke about the case at the November 2007 meeting of the Alaska Native Law Section of the Alaska Bar Association. I boldly predicted that the Alaska Supreme Court would affirm the lower court's decision and uphold CIRI's programs. I even made this prediction with the lawyer on the other side of the case, Fred Triem, sitting there, participating in the discussion. Yes, that's right my friends. Just like Babe Ruth and Joe Namath, I have successfully called my own shot.

[Since I've wandered into the sports area, I thought I would add a side note for the Dear and Esteemed Wife that, upon my passing, I think it would be great idea to have Dave Niehaus, the Hall of Fame announcer for the Seattle Mariners, make the "call" at my memorial service. Something like the following would be nice:

"The designated hitter, Grim Reaper, steps up to the plate now. Grim carries an astonishing, perfect 1.000 batting average, as his long uppercut swing eventually catches up to every pitch thrown his way. Here's Jerome's pitch now . . . and its BELTED deep towards center! Its going, going, going . . . The center fielder, Moe "Darn" Medicine, gives chase but he's not going to bring this one back . . . ITS OVER THE WALL, far, far out there in dead center field, straight above the 'eternity' sign! FLY AWAY! My, Oh, My!" (Wild cheering ensues.)

Just an idea, D.E.W. With any luck, you and Dave will have about three decades or so to work on it.]

Anyhow, the Bodkin case was really not difficult to predict. Fred Triem had made essentially the same arguments in a series of other cases filed in the federal and state courts over the years. He'd lost on every one, ever since Congress amended ANCSA to cut the Native Corporations some slack to honor their cultures. So it was no surprise the Alaska Supreme Court ruled the way it did in Bodkin, and my predicting the outcome was not much of an achievement.

I teased Fred at the Alaska Native Law Section meeting about running a "cottage industry" in these cases over elders' benefits. The decision in Bodkin should just about shut down Fred's little industry for good. Although you can never be 100% sure about these things, the door to Fred's "cottage" should be pretty well barricaded now and the windows shuttered, more or less nailed tight. BLAAAPPP! (Wild cheering ensues.)

Because we work with Native corporations all the time, the lawyers at Atkinson, Conway & Gagnon like to keep up with what is going on in the world of ANCSA. I have just read an interesting article by Douglas Branson, a law professor from Pittsburgh who has often pontificated on ANCSA corporations. In fact, Professor Branson has also meddled in real life ANCSA corporate affairs by acting as co-counsel on real ANCSA lawsuits, including the regrettable case of Hanson v. Kake Tribal Corporation.

Professor Branson's new article appears in the Alaska Law Journal. The title of the article is ridiculously long, but the first part of it is Still Square Pegs in Round Holes? (The article can be found here: Alaska Law Review Current Issue) This title harkens back to Professor Branson's original ANCSA law review article of 1979, which was called Square Pegs in Round Holes: Alaska Native Claims Settlement Corporations Under Corporate Law. The original article was notable for its position that ANCSA corporations should be viewed as business corporations under the law first, last and always. This position, in part, led to the most unfortunate case of Hanson v. Kake Tribal Corporation.

The new article is full of scholarly spew and pointless detail that means nothing in the real world. You know, the typical law professor prattle. And there are even a few inadvertently humorous points where he demostrates the great distance between Pittsburgh and Alaska. For example, he writes about filing corporate amendments with the "Alaska Secretary of State." Real Alaskans know that, while there is an official First Dude of the State, there is no Secretary of State.

The most interesting part of the new article to me was Professor Branson's concession that perhaps he needed to soften his stance a bit. Assuredly, that is bound to happen when the courts in ANCSA cases have rejected Professor Branson's original viewpoint again and again and again. (The sole exception being the lamentable case of Hanson v. Kake Tribal Corporation.) While various parts of the article show that Professor Branson is still willing to grind that old axe, he has backed off enough to concede that "continued adherence to a single form of entity" is no longer crucial.

Yet Professor Branson misses the larger picture by continuing to insist that ANCSA corporations are bound to follow rules of organizational governance that have been developed in other contexts. He seemingly cannot grasp that ANCSA corporations are unique entities governed by their own unique law that was pulled from various places, not exclusively from the law of business corporations. ANCSA corporations were understood as being unique at the time Congress provided for their creation in 1971, and each time Congress has revisited ANCSA it has done so to reaffirm that ANCSA corporations are unique. It is not possible to be a little unique, any more than it is possible to be a little pregnant. Perhaps Professor Branson will catch on to this notion after suffering a couple of more decades of defeat in court.

But buried in the scholarly fiddle-faddle of the article is a truly frightening paragraph and footnote. Professor Branson writes that, in his view, Section 7(r) of ANCSA only applies to Regional Corporations and not to Village Corporations. Section 7(r) authorizes an ANCSA corporation to provide health, education and welfare benefits to Alaska Natives on a basis other than share ownership. The ANCSA corporations have fought through decades of litigation over elders benefit programs. Section 7(r) was meant to put an end to this litigation. In fact, this past fall I argued in the Alaska Supreme Court the most recent case over elders benefit programs, Bodkin v. Cook Inlet Region, Inc. I had hoped that the Bodkin case was going to be last of its kind.

I fear that Professor Branson's comments on Section 7(r) mean there are more lawsuits to come directed at the elders benefit programs of Village Corporations. The self-appointed champions of ANCSA shareholder rights may once again try for another result like the one reached in the unpleasant case of Hanson v. Kake Tribal Corporation, which bankrupted the ANCSA corporation. (Did I happen to mention I dislike the Hanson v. Kake Tribal Corporation case?)