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Alaska Natives at the Time of the Invasions: A Cultural Profile Project Draft 3 Do not quote or copy without permission from Mike Gaffney or from Ray Barnhardt at the Alaska Native Knowledge Network, University of Alaska-Fairbanks. Mike Gaffney suggests that one read the Teacher's Manual Preview first to get a good idea about the purpose and design of this secondary school textbook. Mike Gaffney Chapter 6 When studying Alaska Native life in traditional times, it is almost impossible not to think about the impact of ANCSA on the historic relationship of Native people to the land and its subsistence resources. When, for example, you later profile early Native land-use and settlement patterns, it is strongly suggested that you look at the research, including maps, used by federal agencies and Native organizations to determine what lands each Native region would retain under ANCSA. Most non-Native Alaskans know something about ANCSA because the Native for-profit corporations established by that Act play a major role in the political economy of the state. Certainly Alaska Natives know ANCSA because, one way or another, its provisions continue to shape important aspects of life in their villages and regions. Yet there are some who are not so familiar with ANCSA. And for those of you who are familiar with ANCSA, you will find we approach certain aspects of the Act in ways you may not have thought about. For example, we view ANCSA as a treaty-substitute, noting its similarities and differences to Lower-48Indian treaties. We also emphasize the connection between the federal government’s termination policy which was still in force during the Native land claims struggle of the 1960s and the “termination” provisions found in the original Act of 1971. Please understand that this is only a summary of ANCSA. It would take many more pages to cover its many complexities and its evolution through various congressional amendments. For an excellent comprehensive analysis of ANCSA, see Chapter Five in Alaska Natives and American Laws by David Case and David Voluck. ANSCA as a treaty-substitute. One way to think of ANCSA is as a treaty-substitute. Before Congress ended Indian treaty-making in 1871, most people think extinguishment of aboriginal title was done through treaty negotiations. However, the Indian law scholar, Charles Wilkinson, notes that of the 52 million acres of trust lands now held by Lower-48 Indian tribes, only about 20 million are the direct result of treaty negotiations. In fact “the majority of Indian land was set aside in reservation status by procedures that amount to treaty-substitutes.” These were agreements negotiated “in the field” between the federal government and tribes and approved by both the House of Representatives and the Senate. (Indian treaties only needed Senate advice and consent.) Wilkinson further notes that some Indian reservations have been established by Congress without negotiation with tribes. ANCSA certainly seems to fit his concept of a treaty-substitute, so we use it to organize our quick review of ANCSA1 ANCSA basics. The 1971 Alaska Native Claims Settlement Act is the largest single land transaction between Native Americans and the federal government in United States history. After a decade of legal and political struggle waged against powerful interests both inside and outside of Alaska, Natives retained 46 million acres of Alaska lands. (Recall that Lower-48tribes together hold only 52 million acres of land.) Alaska Natives also received $1 billion as compensation for lands lost due to the federal government’s failure to protect their aboriginal title. Like many Indian treaties, ANCSA extinguished Native aboriginal title to lands traditionally used and occupied by them. And like many Indian treaties, ANCSA provided compensation for lands lost and for Native groups to retain smaller land areas. In this land claims settlement, Natives retained 46 million acres of Alaska’s 375 million acres of onshore lands. And like many Indian treaties, ANCSA required Alaska Natives to accept a set of rules specifying how the retained lands and financial compensation were to be used. But the rules established by ANCSA and upheld by the Supreme Court in the Venetie Indian country case are quite different from those found in Indian treaties and other treaty-substitutes. ANCSA: a different approach. Indian treaties set aside federal trust lands for the use and occupation of Indian tribes under the supervision and protection of the federal government. These reservation lands are clearly owned by the federal government. They are called “trust lands” because the federal government is entrusted by law to see that they and the resources upon them are maintained and protected for the benefit of tribes. We have seen that reservation lands along with dependent Indian communities and Indian allotments constitute Indian country. With ANCSA, however, Congress took a very different approach. Rather than set aside trust lands as Indian country, it established 12 Native regional corporations and about 220 village corporations to hold clear title to the 46 million acres. This means Native corporations hold their lands in fee – as private property. Each Native enrolled in a corporation received 100 shares of stock in both their regional and village corporations. There were some “at-large” shareholders who enrolled only in regional corporations. ( ANCSA also established a landless 13th Native corporation to enroll Alaska Natives living outside Alaska. It is basically an investment corporation.) Figure 9 Another provision of ANCSA said that Natives born after 1971 received no shares in the corporation. They could only become shareholders through inheritance. This provision essentially divided Native communities into two classes of people. There are shareholders who exercise control over one of the most powerful Native institutions in their region – if not the most powerful – and are first to benefit from whatever opportunities it offers. And then there are those of later generations without such power and opportunity. They are often referred to as the “after-borns.” ANCSA has since been amended to allow Native corporations to enroll after-borns. However, only several corporations have done so, each in a different way. The village corporations were entitled to select 22 million acres after which the regional corporations selected about 16 million acres. The remaining acreage was divided between special purpose designations and four former Native reservations, the largest of which is the Venetie (Chandalar) former reserve. But ANCSA gets even more complicated. On lands selected by villages, the regional corporations hold subsurface rights while the village corporations hold surface rights. This split land title has led to costly legal battles on what constitutes surface and subsurface resources. For example, is gravel a surface or subsurface material? There is also a provision requiring each regional corporation to share 70% of its revenue from timber and mineral resources with the other Native regional corporations. This revenue sharing provision has helped several resource-poor corporations survive. But as you might guess, it has led to lengthy court battles over what kinds of overhead costs can be subtracted from the amount a Native corporation is obligated to share. For example, it costs money to extract these resources and prepare them for sale. What percentage of these costs, if any, can be subtracted from the amount to be shared? The $1 billion was distributed to the regional corporations who passed on a percentage of the money to village corporations and to individuals according to a specific set of rules. Today some village corporations have merged with other village corporations or with their regional corporation. Instead of becoming members of tribes occupying Indian country, ANCSA made Natives instant shareholders in for-profit corporations. And like any other for-profit corporation in the United States – whether it be Exxon Mobil or Microsoft – a Native corporation is expected to invest and hold resources for the material benefit of its shareholders. And like any other corporate or individual private property owner in Alaska, Native corporations must abide by Alaska state corporation and land-use laws. Recall the Supreme Court’s ruling in Venetie that Native corporation lands are not Indian country, even if title to these lands is later conveyed by shareholder vote to a federally recognized tribal government. Termination provisions of ANCSA. The 1971 Act contained two very significant sections which became known as the “termination provisions.” First, it terminated exclusive Native control of their corporations after twenty years. It said that in December, 1991, Native corporation stock could be bought and sold on the open market. This meant outside non-Native interests would no longer be barred from owning Native corporation stock. And who controls the Native corporation also controls the land and its use. Secondly, it terminated tax exemptions for ANCSA lands. Starting in 1992, the 40 million acres of ANCSA lands would be subject to state and local taxes. It became quickly evident that this tax liability would be huge and most likely financially bury most corporations. ANCSA was amended in 1987 to minimize the looming disastrous impact of the 1991 termination provisions. As amended, the original restrictions on Native corporation stock were made permanent. Now stock can only be sold or otherwise alienated if a majority of shareholders vote to allow it. As of 2008, no Native corporation has voted for this option. ANCSA was also amended to automatically place undeveloped Native corporation lands in a “land bank.” As long as these lands remain undeveloped, they are not subject to taxation and are protected from creditors should the corporation fall on hard times and be unable to pay its debts. ANCSA as termination policy. It should not surprise us that ANCSA originally had these termination provisions. Why? Because it was enacted while the termination policy was still in force. Recall that the professed purpose of that policy was to free tribal members from federal and tribal supervision. With their tribal affiliation severed, Congress figured Indians would join the larger society and become “true Americans”, individually pursuing their desires and needs free from federal and tribal control. During these years, 109 tribes lost federal recognition and 11,500 Native Americans lost their tribal affiliation. Approximately 1.3 million acres of tribal lands were totally or partially removed from protected trust status.2 Since it was passed toward the end of the termination era, perhaps ANCSA can be thought of as the last fitful gasp of that policy. We should also note that the amendments rescinding the termination provisions were passed during the current era of Indian self determination. In upholding Venetie’s claim to occupy Indian country, the 9th Circuit Court made this point as well. And for the first time tribal sovereignty was mentioned in ANCSA legislation. The 1987 Amendment’s Declaration of Policy states:
ANCSA to ANILA to a rural subsistence priority. Case and Voluck suggest that ANCSA contained several historic compromises. One of these compromises dealt with the very question of how to extinguish all aspects of aboriginal title, including possible hunting and fishing rights, yet protect the cultural economy of rural Native subsistence. The initial framework for this compromise is found in section 17(d)(2) of ANCSA. This provision calls for “ a later set aside of federal lands in Alaska for various environmental purposes such as parks, wildlife refugees, and other conservation system units.” This later set aside of federal lands occurred in 1980 when Congress passed the Alaska National Interest Lands Conservation Act (ANILCA). This Act designated 90 million acres of Alaska lands for the conservation purposes outlined in ANCSA. [The term “cultural economy” is used to emphasize the fact that along with economic benefits, the seasonal round of subsistence activity is also the centerpiece of rural Native cultural life in Alaska.] The heart of the compromise is found in Title VIII of ANILCA which gives Native and non-Native rural residents priority for the subsistence taking of fish and game on federal lands in Alaska. This rural subsistence priority or preference “kicks in” when, for instance, the moose population of a certain area is determined to be unusually low. Then urban residents, sports hunters and others are barred from hunting moose in that area or their bag limits are severely reduced. But since rural subsistence hunters have priority, they can continue to hunt until it is later decided that they, too, must stop if a healthy moose population is to be maintained. But what are we to make of the inclusion of “non-Natives” as part of the rural subsistence priority compromise? In the political negotiations leading up to ANILCA the state argued for the inclusion of rural non-Natives. They said it was only fair to include non-Native rural people who were also dependent on hunting and fishing, many of whom had been assimilated into Native village life. So a compromise was struck. The Natives would not contest the inclusion of non-Native rural residents if the state passed its own law supporting a rural subsistence priority. The state agreed and ANILCA was passed in that spirit. In what Case and Voluck describe as “cooperative federalism,” the federal government also permitted the state of Alaska to manage fish and game on federal lands according to state regulations as long as the rural preference provision of Title VIII was enforced. Again the state of Alaska agreed. But in 1989, the Alaska Supreme Court held in McDowell v. State of Alaska (785 P.2d, Alaska, 1989) that although the state’s rural subsistence preference law may not violate the United States Constitution, it did violate the “equal access” clauses of the Alaska Constitution. This single court ruling brought all federal and state cooperation on subsistence management to a screeching halt. To bring us up to date on the demise of the rural subsistence compromise and where things now stand, Case and Voluck are given the final word:
ANCSA and modern world history. In two ways ANCSA became a model for indigenous people elsewhere in the world who were ready to press forward their own aboriginal land claims. First, the very existence of ANSCA meant that a multi-million acre Native land claims settlement no longer was an abstract notion only championed by some. Now it was a concrete political and legal reality known to many. No longer could governments and other opposition forces argue that the idea of a large land settlement was just the fantasy of a few Native radicals. Now indigenous organizations outside the United States could point to ANSCA and demand that their own governments step up to the plate and negotiate land rights in good faith. Secondly, ANCSA provided other indigenous people with a functioning model for thinking through their own land claims proposals. In Canada, for example, Native organizations looked at ANCSA and said we like this provision but we don’t like that provision. Or we like this provision but with modification. Following soon after ANCSA was the 1975 James Bay and Northern Quebec Agreement in Canada. The Cree Indians of James Bay and the Inuit of Northern Quebec were very selective in what they took from ANCSA and what they rejected. Their land settlements, for example, are very clear about legal protections and financial support for Cree and Inuit subsistence hunting and fishing. Quickly following the James Bay and Northern Quebec agreements was the 1978 Naskapis settlement in Northeastern Quebec and then the 1984 Inuvialluit land claims agreement with the Inuit people of Canada’s Western Arctic. Later would come the Yukon Indians land claims and the Dene and Métis claims in the Northwest Territories. And, finally, the creation of the Inuit territory of Nunavut in 1993. Along the way, each Native land claims proposal built upon the experiences of the preceding agreements. But it all started with ANCSA. Beyond Canada, the 1970s saw significant developments in Greenland and in Australia. Beginning in the 1700s and lasting until 1953, Greenland and its Inuit population had been a colony of Denmark. In 1953 Greenland was removed from colonial status and made a political and administrative unit of Denmark much like American states or Canadian provinces. But it was not until 1978 that Greenland took the next major step toward greater internal sovereignty when it was granted home rule by the Danish parliament. This means Greenlanders have sovereign authority over all of their domestic affairs while Denmark retains control of foreign relations and shares authority with Greenland over natural resources. In Australia, the first major breakthrough in securing land rights for Aboriginal peoples came with the 1973 establishment of Land Councils in the Northern Territory. This led to the Northern Territory Aboriginal Land Rights Act of 1976 which set aside lands for Aboriginal reserves and established an Aboriginal right to claim other available lands of the territory. Today Aboriginal people exercise some political authority over about 49 per cent of the land in the Northern Territory. Unfortunately this is not the whole story in Australia. The 1973 breakthrough in Aboriginal land rights only applies to the Northern Territory which is governed directly by the Australian federal government. The remainder of Australia is divided into six states whose governments have steadfastly resisted Aboriginal land claims. We look more closely at the historical absence of Aboriginal rights in Australia when we discuss the problem of cultural ideals versus social reality in Chapter Fourteen.
Two final points. First, we emphasize the idea that Natives retained 46 million acres of land rather than saying Natives were given or awarded 46 million acres of land. We do so because the very passage of ANCSA is an admission by the United States that in 1971 Alaska Natives did in fact hold aboriginal title to virtually all lands in Alaska. Therefore the United States was legally required to reach an agreement (treaty-substitute?) with Alaska Natives on what lands were to be completely ceded to the United States and what lands were to be retained by Natives. If anything, ANCSA actually awarded land to the United States, not to Alaska Natives whose aboriginal title had never been properly extinguished. Secondly, the aboriginal title of Alaska Natives may not be completely extinguished. Case and Voluck make this point:
The Native argument for aboriginal hunting and fishing rights on the OCS goes like this: The state of Alaska has jurisdiction over all seas within three miles of its shores. But the OCS exists beyond the three mile limit and, therefore, is not under Alaska state jurisdiction. In traditional times many coastal and island Native communities engaged in subsistence activities beyond the three mile limit. Therefore they retain aboriginal hunting and fishing rights beyond the three mile limit. But wait a minute! Didn’t ANCSA extinguish Native aboriginal title to land and to hunting and fishing rights in Alaska? Yes it did, but the issue here is about the OCS “beyond Alaska’s territorial seas” and therefore not in Alaska! Since ANCSA applies only to Alaska, Native aboriginal rights on the OCS remains a open legal question since federal jurisdiction can cover as much as 100 miles seaward from Alaska’s three mile limit. And federal jurisdiction brings into play federal Indian law. This would not be an exclusive right because other vessels are permitted to fish these areas as well. So, practically speaking, what might such a nonexclusive OCS aboriginal right mean? It could be argued that Alaska Natives have a right to a certain percentage of the fish harvested on the OCS. There is precedent for this argument. In a series of treaties negotiated during the 1850s, tribes in Washington state ceded large tracts of land to the federal government. In return, they received a money settlement and “the right to take fish at the usual and accustomed grounds and stations in common with all citizens of the territory.” This included both on and off reservation fishing rights. In the 1970s the Washington tribes began to aggressively assert this treaty right. As expected, they encountered stiff opposition from the state government and from powerful non-Indian fishing interests. A main concern of all was the impact of more fishing on decreasing numbers of salmon. Also as expected, the federal courts were drawn into the controversy. After several intense battles in the lower courts, the Supreme Court held in 1979 that despite all the social and economic changes to the area since the 1850s, the treaties still guaranteed tribes a reasonable percentage of the salmon taken each season.5 In Alaska the OCS question has been come before the courts but, for one reason or another, the question is yet to be resolved. Now we move on to the next section of your Cultural Profile Project – Settlements and Land Use – where knowledge gained from our side trips into federal Indian law and ANCSA becomes immediately useful. What we should be thinking about – key study questions:
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