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Do not quote or copy without permission from Mike Gaffney or from Ray Barnhardt at the Alaska Native Knowledge Network, University of Alaska-Fairbanks.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 7
Settlements and Land Use

Demographics – Size & distribution of population (settlement patterns)
community security.
Land use – Lands & waters – location, use, and boundaries
[Think “aboriginal title,” ANCSA, and maps]

Settlement patterns. Here we want to know the demographics of our selected Native group in traditional times. We need some idea of the number of people living on their tribal homeland at the time of the invasions. However, do not stop with researching only population size – with only the estimated number of people living within the group’s territory. Equally important for getting a good picture of what life was like back in those days is understanding the distribution of people across your Native group’s territory. This information gives us a picture of their settlement pattern. Did people live in more densely populated settlements like the Tlingits? Or like the Iñupiaq, was their traditional territory dotted with smaller settlements of various sizes? Or like Interior Athabaskans with their still smaller and widely distributed population, did family and local band units regularly move from one hunting area to another, particularly during winter months?

Right away we see why map work is crucial if we are to have a complete picture of Native settlements and land use in traditional times.

As we should expect, Native communities in traditional times had to establish their settlements close by fresh water and with the best possible access to fish and game. Often these settlements were in places sheltered from violent weather. Yet many of these communities still had another factor to consider before settling down – what location offered the best physical security against potential enemies? For an example, let’s go to the Aleutians and the research of Waldemar Jochelson, a Russian anthropologist who did fieldwork among the Aleuts in the early 1900s. Reporting on the factors determining the location of Aleut villages, he says:

All the ancient Aleut villages were situated on the sea-shore, not on the high land above the sea, and usually on land between two bays, so that their skin boats could easily be carried from one body of water to another at the approach of foes. Thus the usual location of villages was on narrow isthmuses, on necks of land between two ridges, on promontories, or narrow sandbanks. An indispensable adjunct to a village was a supply of easily accessible fresh water – a brook, fall, or lake. River-mouths were never used as permanent dwelling places, because the topographical conditions were conducive to unexpected attacks. The underground dwellings of the old Aleut [Aleuts of traditional times]were much like traps; if an attack were made when the inhabitants were within, they could leave it alive only through a single opening in the roof. For this reason villages were built on open places, whence observations could be made far out to sea. Nearly every village had an observatory on a hill where constant watch was kept…¹

Be sure to look for similar kinds of information on problems of community security and how it was a factor in determining settlement patterns for your selected Native group.

Now we can complete our definition of environmental adaptation. The Aleut example of defensive positioning as a factor in village location makes it clear that we need to include the social world as well as the natural world in any definition of Alaska Native environmental adaptation. Unless truly isolated over long periods of time, any social group will have some relationship with other groups. As with individuals, all human groups must adapt to the larger social environment in which they live. At any given time this environment can include both friendly and hostile forces. Every Native group conducted some form of foreign relations and provided for its own defense. Warfare, commerce, and alliance-building fall within the general meaning of foreign relations. To fit our purposes here we need a definition of environmental adaptation which includes the social as well as the natural environment. Accordingly, our complete and final definition is:

Environmental adaptation occurred when a Native society socially organized itself and developed technologies to a) effectively live in and harvest the subsistence resources of its ecological zone, and to b) effectively established secure and beneficial relations with other Native groups within their social environment.

Land use and aboriginal title. In earlier chapters the point has been made that to persuade Congress to pass ANCSA in 1971, Alaska Natives needed a solid legal argument to support their land claims. The core of their argument was that American law clearly protected Native aboriginal title to land but that the federal government had historically failed to uphold this law. Because of this failure, lands in Alaska had been taken illegally from the indigenous Native tribes. Your map work and description of the boundaries of your Native group’s traditional territory and how they used their lands and waters should closely match the lands they claimed based on aboriginal title.

Please note that the title of this chapter, Settlements and Land Use, means the same thing as “use and occupancy,” the key words in the legal definition of aboriginal title. To prove use and occupancy usually means drawing maps based on the tribe’s oral history of the area, written accounts from early visitors to a tribal territory, and other available social and scientific information. Mapping the proof of actual occupancy (the location of Native settlements) has not presented much of a problem. On the other hand, mapping proof of land use – mapping all the territory used by a Native group for subsistence hunting and fishing – has resulted in major land claims controversies, not only in Alaska but also in the Lower-48 and in Canada.

Let’s suppose, for example, that during a court hearing on a Native land claim, lawyers for the federal government make this argument: Okay, we acknowledge these specific areas of the map accurately show where people actually resided in traditional times. And we agree that the tribe should be compensated for the loss of this settled land. But we do not acknowledge the much larger land area they claim to have regularly used for their yearly round of subsistence activities. We understand that aboriginal title means both use and occupancy, but we see no good evidence that the tribe regularly did subsistence on all of the lands claimed by them. In fact, we don’t see how they can make such an extensive claim since it includes steep, rocky, and barren lands on which no subsistence hunting and fishing could have taken place.

As we saw in Chapter One, the federal government actually put forth such a “barren lands” argument in the 1959 Tlingit and Haida land claims case. This historic Indian law case began way back in 1929 when the Alaska Native Brotherhood (ANB) petitioned Congress to waive the sovereign immunity of the United States so that ANB could sue the federal government for not protecting their aboriginal title to lands in Southeast Alaska.

In 1935, Congress agreed with ANB’s aboriginal title argument and said these tribes should have their day in court. Congress then passed what is known as a “jurisdictional act” authorizing the federal Court of Claims to begin investigating the Tlingit and Haida complaint according to certain guidelines. When passing a jurisdictional act, the United States government consents to being sued by a tribe, thus waiving its sovereign immunity for that single purpose. What followed were years of delay and much investigation by the Indian Claims Commission, the only judicial body ever established whose sole purpose was to hear Native American complaints against the federal government and then recommend compensation or other forms of restitution when appropriate.

A brief sunshine moment for American justice: The Indian Claims Commission. There was one time in Native American history when Congress took a bold, decisive step to fulfill the American ideal expressed at the end of the Pledge of Allegiance where it says, “and justice for all.” The federal government’s long line of broken promises and legal deceptions in Indian affairs had become so evident and so embarrassing that in 1946 Congress established the Indian Claims Commission as a special tribunal under the U.S. Court of Claims. The Commission was charged with researching those claims by Native American tribes charging that the U.S. government had dealt dishonorably and unfairly with them. As in the Tlingit and Haida case, if a tribal claim was found to be valid, the Commission recommended legal remedies to the Court of Claims.

Why does the Indian Claims Commission stands out as a historic moment in American justice? Because it is the only time in U.S. history when a judicial body was created to operate beyond established laws and use as a standard of judgment the broad moral principle of “fair and honorable dealings” by the United States. The Commission was to use “the contemplation of justice” rather than the “authority of law” as the paramount standard. This meant, for example, that the Commission could look beyond the legal language of a treaty and ask the question: Were the legally documented provisions of this treaty fairly and honorably negotiated by the United States? A treaty may be the law of the land, but that does not mean it was justly arrived at. When President Truman signed the Indian Claims Commission Act in 1946, he made the honor of the United States the central issue. He said:

This bill makes perfectly clear what many men and women, here and abroad, have failed to recognize, that in our transactions with the Native tribes we have at least since the Northwest Ordinance of 1787 set for ourselves the standard of fair and honorable dealings, pledging respect for all Native property rights…It would be a miracle if in the course of these dealings – the largest real estate transaction in history – we had not made some mistakes and occasionally failed to live up to the precise terms of our treaties and agreements with some 200 tribes. But we stand ready to submit all such controversies to the judgment of impartial tribunals. We stand ready to correct any mistakes we have made.

The Commission was to operate for only ten years. But due to the extraordinary number of tribal claims of “dishonorable dealings” by the United States, the life of the Commission was extended five times. After 31 years, it submitted the last of its work to the Court of Claims in 1978.

The Tlingit and Haida land claim was not the only Alaska Native case investigated by the Commission. In 1979, after years of legal wrangling, the Commission finally recommended and the Court of Claims agreed to a $8.5 million award for the Aleuts of the Pribilof Islands who had suffered 75 years of oppressive colonial control by the federal government. The Aleuts had lived and worked under almost slave labor conditions as the government collected millions in profits from the Pribilof fur seal harvest.²

Why call the Commission’s work just a “brief sunshine moment” for American justice? Why don’t we give it greater grandeur and call it a sunshine period or era of justice in Native American history? After all, when we include the several remaining claims settled in the early 1990s, tribes received a total of $1.8 billion under the Indian Claims Commission Act. Unfortunately the reality is that what may have begun as an enthusiastic policy to achieve a final justice in Native affairs became in the 1950s part of a very different federal Indian policy. Many in Congress figured that the sooner the United States government could rid itself of these tribal claims, the sooner the sovereign status of tribes and federal trust protection of their lands could be terminated. What we are talking about, of course, is the ruinous federal Indian policy of assimilation and termination which lasted until the Indian Self Determination and Educational Assistance Act of 1975.³

Another lesson from the Tlingit and Haida case. Recall during our discussion of the term invasion in Chapter One, we referred to the Tlingit and Haida case and what the Court of Claims said about barren lands. We return to that case now for a more in-depth look at the barren lands issue. Keep in mind that any discussion of an Alaska Native group’s territorial boundaries and land use patterns in traditional times is equally a discussion of aboriginal title claims to land made by that group, whether expressed in the Tlingit and Haida case or later in ANCSA.

We know that in 1959 – also the year of Alaska statehood – the Court of Claims ruled in Tlingit and Haida that the federal government had violated the aboriginal title of these Southeast tribes. Therefore the Tlingit and Haida had a right to financial compensation for lands illegally taken from them. Also recall how it set the stage for ANCSA by establishing aboriginal title in Alaska as valid legal doctrine. But unlike Native regions and villages under ANCSA, the Tlingit and Haida retained no land in 1959. It was a landless settlement. They receive instead financial compensation for lands illegally taken from them over the years. Later, however, Tlingit and Haida villages did recover parcels of land through ANCSA. Now let’s further explore one aspect of the case – the argument over Tlingit and Haida claims to land they did not regularly use and occupy.

To repeat: lawyers for the federal government argued that the Tlingit and Haida offered no proof that they actually used and occupied all the land to which they claimed aboriginal title. They further argued that some of the claimed lands, particularly along the mountainous boundaries to the east, were inaccessible or useless and should not be included in any aboriginal title claim. The Tlingit and Haida had claimed aboriginal title to virtually all lands of southeast Alaska, from Klukwan in the north to Annette Island in the south. To the west they claimed all islands of the Southeast Archipelago as well as all of the mainland including the western slopes of the great mountain ranges to the east.

So how did the Court of Claims respond to the federal government’s argument? The Court explained that in Native land claims cases, a ruling comes in two parts. The first part seeks proof of the territorial reach of the tribe’s aboriginal title. This requires answers to two questions: a) did Alaska tribes in fact use and occupy the lands they claimed? And b) if some of the claimed lands were “barren, inaccessible, and useless,” did the tribes still exercise dominion over these lands? Let’s have the Court speak for itself on this question:

We do not mean to depart in any sense from the rule of long standing that Native title to lands must be shown by proof of actual use and occupancy from time immemorial. But it is obvious from a study of the many cases involving proof of Native title to lands both in this court and at the Native Claims Commission that where the Indians have proved that they used and occupied a definable area of land, the barren, inaccessible or useless areas encompassed within such overall tract and controlled and dominated by the owners of that surrounding land, as well as the barren mountain peaks recognized by all as the borders of the area of land, have not been eliminated from the areas of total ownership but rather have been assigned no value in the making of an award, if any, to the Indians. [Our emphases]

We have emphasized in italics where the Court of Claims expanded the definition of aboriginal title beyond use and occupancy. Now it includes tribal dominion over lands within a claimed area even if not regularly use and occupied by tribal members. Once this part of the case is concluded and a tribe’s full aboriginal land title has been established, than a second hearing takes place. At this hearing the court calculates the compensation the federal government owes the tribe by determining the value of the land at the time it was illegally taken.

It is during the second hearing that the “barren and inaccessible” lands already ruled as part of the tribe’s aboriginal title may be subtracted from the total compensation amount because they are judged not to have had material value. In 1965, after all the maps were studied and all the financial calculations were done, the Tlingit and Haida received the $7.2 million compensation for lands taken from them in violation of the American legal principle of aboriginal title.

So far we have learned that:

1) aboriginal title is a fundamental principle of federal Indian law.

2) proving a tribe’s historic occupancy of land has been much easier than proving their use of lands and waters which may stretch far beyond settled areas.

3) although not compensated for, the barren, unusable lands traditionally under a tribe’s dominion are considered part of their aboriginal title.

4) whether in the Tlingit and Haida case or in ANCSA, the claims to land submitted by Native groups should closely match their land use patterns in traditional times.

ANCSA and mapping land use: further research. You are required to describe how your selected Native group traditionally used and occupied their lands and waters. Certainly a complete description requires mapping the group’s territorial boundaries. Should you wish to do further research, this mapping exercise raises two interesting questions.

First, does your map of traditional land-use correspond to the lands your selected Native group actually claimed by right of aboriginal title? One place to begin your investigation is with a 1969 study conducted by the Federal Field Committee on Development Planning in Alaska. In order to have reliable historical data for judging various Native land claims, the Senate Committee on Interior and Insular Affairs asked the Field Committee to undertake a comprehensive research project. Among other things, the Field Committee researched Native patterns of settlement and land use in traditional times. The Committee’s findings were compiled in a major document entitled Alaska Natives and the Land published early in 1969. Their research clearly indicated that the Native claims to most Alaska lands based on aboriginal use and occupancy were valid.⁴

The second interesting question is: To what extent does your map or the maps in Alaska Natives and the Land correspond to a map of ANCSA lands your Native group actually retained in 1971? Do the boundaries lines match? Did your Native group retain more land or less land or about the same amount of land they claimed? The Native corporations in your region should have this information. They may even have the maps you need.

In Chapter Six we mentioned the continuing issue of whether Natives have a nonexclusive aboriginal title to hunting and fishing rights on the Outer Continental Shelf (OCS) beyond Alaska’s three mile jurisdiction. If you are profiling a coastal Native group, the research questions become: Did they hunt and fish beyond the three mile limit? If so, can a map be drawn showing the area of the OCS where this subsistence activity took place in traditional times?

What we should be thinking about – key study questions:

Why is it important to add a social dimension to our definition of environmental adaptation?

When researching traditional Native land use, why do we say, “think aboriginal title?”

Why is it easier to research traditional settlement patterns than traditional land use?

Why do we say that the Indian Claims Commission was only a “brief sunshine moment” and not a sunshine era or period in Native American history?

How did the Court of Claims expand the definition of Aboriginal title in the Tlingit and Haida case?

Table of Contents | Chapter 8