CHAPTER 3 MINERAL DEVELOPMENT ON NATIVE LANDS: THE ALASKA PERSPECTIVE
| Jurisdiction | United States |
(May 1999)
MINERAL DEVELOPMENT ON NATIVE LANDS: THE ALASKA PERSPECTIVE
Simpson, Tillinghast, Sorensen & Lorensen
Juneau, Alaska
Table of Contents
INTRODUCTION
1. OVERVIEW OF LAND TITLE TO NATIVE LANDS IN ALASKA
A. Passage of the Alaska Native Claims Settlement Act
B. Conveyance scheme under ANCSA
1. Withdrawal of all federal lands in Alaska
2. Selection Rights
a. Alaska divided into twelve regions
b. Geographic limitations
i. Interior Alaska
ii. Southeast Alaska
c. Use and purpose restrictions upon selections and conveyances
d. Overselection
3. Conveyances
a. Village corporation conveyances
i. Surface rights
b. Regional corporation conveyances
i. Surface and Subsurface Rights
ii. Rock, sand and gravel — Defined by Courts
c. Interim Conveyances (IC)—Patents
4. Termination of ANCSA withdrawals and Selection Rights
5. Segregated land
6. Land Exchanges
a. Administrative
b. Legislative
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2. MINERAL DEVELOPMENT OF REGIONAL NATIVE CORPORATIONS
A. Regional corporations are fee owners of the mineral estate
1. Specific interests of Native Regional Corporations
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. Development of Native Owned Mineral Interests
1. Accuracy of BLM Records and Hazards of Relying Upon Them
2. Regional Corporation Land Managers
3. Mineral agreements with Native corporations
a. Trespass agreement
b. Exploration agreement
c. Mineral Lease
4. 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 AND SUMMATION
Figure 1 Map of Alaska depicting the 12 regions of the regional corporations
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INTRODUCTION
This paper addresses mineral development 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 almost 30 years ago.2 As a result of ANCSA, more than 40 million acres of land are, and will be, in Native ownership.
By making available large tracts of land for mineral exploration and development, ANCSA has presented mining companies a unique opportunity for mineral exploration and development on Native lands without the federal oversight typical of other Indian owned lands. Because these are private Native 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.
Mineral development on 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. Thus, in many instances, the mineral development 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
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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 seeks mineral development on these lands must be aware of these diverse interests and how they interplay in the process of developing the mineral rights associated with these lands.
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 develop a mineral interest on Native lands.3
1. OVERVIEW OF LAND TITLE TO NATIVE LANDS IN ALASKA
A. 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."4 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.5
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.
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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,6 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 ... .7
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 non-legal 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 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, 1971.8 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 additional land in Alaska.9 The Act also revoked all existing Indian reserves, with the exception of Annette Island,10 and revoked the trust status created by the Native Allotment Act.11 The compensation for extinguishment of claims was set at $962.5 million,12 to be paid out over a number of years. These funds were to be derived from congressional appropriations and mineral revenues from state
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and federal lands.13
B. Conveyance scheme under ANCSA.
(1) Withdrawal of all federal lands in Alaska.
To provide fee simple title to some 44 million acres, ANCSA named over 200 villages, eligible for benefits under the Act, which were required to form corporations.14 Subject to valid existing rights, public lands in townships that (a) enclosed all or part of the identified Native villages, land in townships (b) that were contiguous to or cornered on such township, and land in townships (c) that was contiguous to or cornered on land designated in (b) above were withdrawn from all forms of appropriations under public land laws, including mining and mineral leasing laws and from selection under the Alaska Statehood Act.15 Additionally, if the land withdrawn in the manner described above is insufficient to permit an eligible party to select the acreage it is entitled to select, the Act permitted the Secretary to withdraw three times the deficiency from the nearest unreserved, vacant and unappropriated public lands and from land in each township that is contiguous to or corners on such lands.16 The Act exempted from withdrawal public lands in the National Park System and lands withdrawn or reserved for national defense purposes other than the Naval Petroleum Reserve Number 4.17 Ultimately, virtually all of the unappropriated federal land in Alaska became available for selection by the Native corporations.
However, village corporations were permitted to make their selections only from land that had been withdrawn for that purpose. They were not free to select from land anywhere in Alaska. Each withdrawal consisted of the core township that contained the village and additional...
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