ACQUIRING MINERAL RIGHTS TO ALASKA NATIVE LANDS
| Jurisdiction | United States |
(Jan 1994)
ACQUIRING MINERAL RIGHTS TO ALASKA NATIVE LANDS
Birch, Horton, Bittner & Cherot
Juneau, Alaska
Table of Contents
INTRODUCTION
I. HISTORY OF TITLE TO NATIVE LANDS IN ALASKA
A. Federal ownership before passage of Alaska Native Claims Settlement Act
B. Passage of the Alaska Native Claims Settlement Act
C. Conveyance scheme under ANCSA
1. Withdrawal of all federal lands in Alaska
2. Selection rights
a. Interior Alaska
b. Southeast Alaska
c. Indian Reserves
d. Overselection
3. Conveyances
a. Village corporation conveyances
b. Regional corporation conveyances
i. Rock, sand and gravel -- Case Law
c. Interim conveyances--Patents
4. Termination of ANCSA withdrawals and Selection Rights
5. Land Exchanges
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II. ACQUIRING MINERAL RIGHTS FROM REGIONAL NATIVE CORPORATIONS
A. Regional corporations are fee owners of the mineral estate
1. Specific interests of Native owners
a. Environmental protections
b. Land stewardship and ownership views
c. Shareholder hire and other economic opportunities
d. Rock, sand and gravel use
e. Revenue Sharing — 7(i) and 7(j) issues and concerns
2. Advantages of Native ownership
a. Less federal and state oversight and control
b. Greater security in land position
c. Same advantages as with other fee owners
B. How to acquire the mineral interest
1. Accuracy of BLM records and hazards of relying upon them
2. Mineral agreements with Native corporations
a. Trespass agreement
b. Exploration agreement
c. Mineral lease
3. Role of village corporations
a. Access to surface
i. Assistance by regional corporation
b. Surface use agreement
i. Protection of surface values
ii. Shareholder hire and other economic opportunities
iii. Environmental protections
CONCLUSION
Figure 1 Map of Alaska depicting the 12 regions of the regional corporations
Figure 2 Outline Alaska overlaying map of continental United States
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INTRODUCTION
This paper addresses the acquisition of mineral rights on Native lands in Alaska owned by the Native regional corporations and, to some extent, by the Native village corporations.1 These Native corporations were created under the Alaska Native Claims Settlement Act ("ANCSA"), which was enacted over 20 years ago.2 As a result of ANCSA, more than 40 million acres of land are, and will be, in Native ownership. The Native corporations own vast tracts of land; some holdings exceed the size of several states.3
By making available large tracts of land for mineral exploration contracts, ANCSA has presented mining companies an unusual opportunity for mineral exploration and development. Because these are private Native lands, there is no federal oversight normally associated with Indian lands. Mining companies and Native corporations are free to negotiate their own deals without federal intervention. This status permits mining companies to acquire a land tenure position that cannot be found on state or federal lands. Further, in light of the expected changes to the mining law, these lands may represent the last great "safe haven" for mineral exploration and development.
The acquisition of mineral interest in Alaska Native lands is not without its own set of complications and procedures. For example, of the 44 million acres conveyed to the Native corporations, the surface estate to 22 million acres will ultimately belong to village corporations, while the regional corporations own the subsurface estate.
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Thus, in many instances, the acquisition of mineral rights will require negotiations with the regional corporation for subsurface rights and the village corporation for surface rights. Additionally, the Native corporations have an affinity to the land that is not usually found in most private land holders. The Native owners have owned this land for thousands of years; they share a sense that this ownership will continue for thousands of years. The land base is used for subsistence hunting, fishing, and gathering, and serves as the foundation for the continuation of the Native traditional and cultural heritage. While serving this historical role, the land must also provide economic opportunities to the Native corporations and their shareholders. At times, these interests conflict. Any entity that acquires a mineral interest in these lands must be aware of these diverse interests and how they interplay in the process of acquiring mineral rights.
The rest of this paper discusses these varied interests, highlighting the major interests and concerns of the Native corporations. By way of background, the paper provides a brief history of how the Native populations in Alaska obtained their interest in land and how this interest was conveyed from the federal government to the Native corporations. Next, the paper addresses the key concerns of Native corporations when faced with economic development of their lands. Lastly, the paper describes the types of agreements and the provisions in those agreements that have been used to acquire a mineral interest in Native lands.4
I. HISTORY OF TITLE TO NATIVE LANDS IN ALASKA
A. Federal ownership before Alaska Native Claims Settlement Act.
From the transfer of Alaska from Russia to the United States on October 18, 1867, to the passage of the Alaska Native Claims Settlement Act in 1971,5 the status of Alaska Native land claims was ambiguous. The Organic Act of 1884 was the first
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land law of Alaska under United States sovereignty.6 While this Act specifically protected the claims of miners and land used by missionaries, it left uncertain the status of land claims by Alaska's indigenous peoples.7
The Act provided:
Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them by the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.8
By contrast, miners could obtain title to their claims unless the claims were located on a site occupied or improved by members of Native groups.
The problematic nature of aboriginal claims continued through the early legislation dealing with Native land titles. To explain this development fully, it is necessary to sketch the operative theory of land conveyance. The cession of Alaska to the United States converted all land and water into the public domain (i.e., to become land held and controlled by the federal government). Congressional action was required to transfer ownership to private hands or otherwise to designate areas of the public domain for specific uses. With the Native Allotment Act9 in 1906, Congress permitted adult Natives to select allotments of 160 acres — provided the tract did not contain mineral deposits.10 This Act was followed by the Native Townsite Act of 1926, which provided for village surveys in lots, blocks, and streets, and for conveying individual lots to Native adults.11
These two land Acts provided for a restricted title: only with the permission of the Secretary of the Interior could a Native to whom a lot had been conveyed lease or sell that lot.12 These Acts neither extinguished nor recognized aboriginal title.
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B. Passage of Alaska Native Claims Settlement Act.
Through the Statehood Act of 1958, the State of Alaska and its people "disclaim[ed] all right and title ... to any lands or other property (including fishing rights) the right or title to which may be held by any Indians, Eskimos or Aleuts (hereinafter called natives) or is held in trust for them."13 This disclaimer did not, however, end the controversy surrounding aboriginal claims. The same Act authorized the State of Alaska to select and obtain title to 103 million acres of land from the public domain.14
Because the Statehood Act failed to define "right and title," it is not surprising that the selection process appeared to threaten lands to which the Natives thought they had right or title by virtue of traditional use.
The aboriginal people regarded a 1959 Court of Claims decision as support for their position. In Tlingit and Haida Indians of Alaska v. United States,15 the Tlingit and Haida Indians of Southeast Alaska successfully sued for damages suffered as the result of historical policies pursued by the United States Government. The court held that:
[T]he plaintiffs have established their use and occupancy, i.e., Indian title, of the lands and waters in southeastern Alaska ... [at issue in the case and] these Indians lost most of their land in southeastern Alaska through the Government's failure and refusal to protect the rights of Indians in such lands and waters, through the administration of its laws and through the provisions of the laws themselves; that a large area of land and water in southeastern Alaska was actually taken without compensation and without the consent of the Indians, the Presidential proclamations issued pursuant to law ... .16
This decision had obvious implications for much of the rest of Alaska with respect to the question of the validity of the "Indian title" to land that had been the object of traditional use. In addition, several nonlegal developments facilitated movement toward resolving the issues raised by aboriginal land claims. The continuing conflict between the state selection process and Native land claims, combined with
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pressure from the discovery of the Prudhoe Bay oil field and the proposed construction of a trans-Alaska oil pipeline, acted as a catalyst for the passage of ANCSA.
ANCSA was signed into law on December 18, 1971.17 The Act provided Alaska Natives with fee simple title to 44 million acres of land; in return, it extinguished Native claims based on aboriginal title to any...
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