CHAPTER 4 ALASKA NATIVE CORPORATIONS AND NATIVE LANDS

• Jurisdiction: United States

Alaska Mineral Development
(Sep 1978)
CHAPTER 4
ALASKA NATIVE CORPORATIONS AND NATIVE LANDS
John T. Shively
Nana Development Corporation
Anchorage, Alaska

TABLE OF CONTENTS

SYNOPSIS

Biographical Sketch 4-i

PART I.

Introduction

PART II.

History

PART III.

Enrollment

PART IV.

a. Structure—Regional Corporations

b. Structure—13th Region

c. Structure—Village Corporations

d. Structure—Former Reserves

PART V.

Native Corporations—Functions and Objectives

PART VI.

a. Monetary Benefits

b. Monetary Benefits—Distribution

c. Monetary Benefits—Regional Revenue Sharing

PART VII.

a. Land—Villages

b. Land—Region

c. Land—Southeastern Alaska

d. Land—Miscellaneous

e. Land—Selection Process

f. Land—Status of Conveyance

PART VIII.

a. ANCSA Implementation Issues

b. Stock Alienation

c. Mining Claims

d. Contracting and Leasing

e. Contracting

f. Village Corporations and Subsurface Development

g. Water Rights

h. Easements

i. Land Trades

j. Land Taxation

PART IX.

Conclusion

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I. Introduction

On December 18, 1971 President Nixon signed into law, the Alaska Native Claims Settlement Act (ANCSA) P.L. 92-203 (85 Stat. 688; 43 U.S.C. 160 et. seq.) The signing of the Act by the President was the culmination of six years of hard lobbying by Alaska Native leaders to obtain a settlement of the claims that Alaska Natives had on most of the land in Alaska.

In many senses, Public Law 92-203 is landmark legislation for the American Indian and Alaska Native community. It is an entirely new approach to dealing with claims of American Natives. The legislation has also represented a starting point for other Native groups to press their claims against governments in Canada and Australia.

The Alaska Native Claims Settlement Act is important not only because it represents a departure from the traditional American government settlements with American Natives, but also because it represents a settlement which has forced Alaska Natives to face many complex legal issues as a result of the Act. It is important to note that many of these issues remain unresolved and many will not be resolved without expensive and prolonged actions in the United States Court System. However, because ANCSA is a piece of Federal legislation, it can be amended and fine tuned by Congress. In fact, Congress has already amended ANCSA three times in the Acts of January 2, 1976, P.L. 94-204 (89 Stat. 1145); October 4, 1976, P.L. 94-456 (90 Stat. 1934); and November 15, 1977, P.L. 95-178 (91 Stat. 1369). Congress is also considering a series of amendments to ANCSA as part of the Alaska national interest lands legislation (H.R. 39, S. 3016, S. 3303, and H.R. 13798, 95th Congress).

II. History

Before we discuss the Settlement Act itself, I think it is important to understand some of the history behind it. The United States has always recognized that American Natives had some form of title to land.

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However, our government's history of treatment of Indians is well known and the solutions to Indian land ownership, were in most cases, criminal in nature.

The general concept of aboriginal rights of Indians, based on use of such lands for centuries has been recognized since the early 1500's and was first applied in the United States by the Supreme Court in Johnson v. McIntosh, 8 Wheat (21 U.S.) 543 (1823). This decision was consistent with the application of a principle established early in the exploration of the New World, and applied as well in Canada and South America that only the sovereign, and no private party, could extinguish or convey such rights. In addition, there is further legal foundation for the Settlement Act. The first indication of Alaska Native land rights appears in the Treaty of Cessions (Treaty of March 30, 1967, 15 Stat. 539) which was signed with Russia at the time of sale of Alaska to the United States. The Treaty did not extinguish Native title but subjected it to such laws as Congress might pass affecting "uncivilized tribes".

Alaska Native land rights were protected in virtually every Congressional Act passed effecting land title in Alaska, including the Organic Act of 1884 (Act of May 17, 1884, 48th Congress, 1st Session, 23 Stat. 24, "An Act Providing for Civil Government for Alaska") which stated that Alaska Natives should not be disturbed in their use and occupancy of the land, or claims on the land, but reserved for Congress to decide at a later date exactly what land rights Alaska Natives actually had. (See also Act of June 6, 1900 (31 Stat. 321 et. 3301). The Alaska Statehood Act (Act of July 7, 1958, P.L. 85-508, 72 Stat. 339, as amended, 73 Stat. 141.) and the Alaska Constitution also contain language protecting Alaska Native land rights.

It was not until the middle 1960's that the Alaska Natives finally organized to make the major push for the Settlement of their claims. There is no question that there were some key elements which contributed to the effort of the Natives at that time. One important element was the Section 6 of the Alaska Statehood Act which allowed the State of Alaska to select 104 million acres of land. It became clear early in the 1960's that the State of Alaska would be selecting land that had traditionally been used and occupied by Natives. Another contributing factor was the oil and gas leasing on the Tyonek reservation which resulted in $13,000,000 royalty payments. This payment sparked the interest of other Native groups in the potential benefits of owning land.

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As various Native groups filed claims and protests against conveyances to the State, thus asserting Native ownership to virtually all of Alaska, a couple of other important events contributed to the eventual settlement. One event was the decision by the Secretary of the Interior Udall to put a land freeze on the conveyance of all public lands in Alaska until the Native land claims question was settled. This meant that the State of Alaska could no longer receive title to land, and other developing entities such as the oil companies found land which they wanted to develop, such as the North Slope, tied up until the claims were settled. It became clear to the oil companies that until the Alaska Native Claims were settled, the oil development would most likely not take place. (See Native Village of Alakaket, et. al. v. Morton, Civil Action No. 706-70, U.S.D.C. — District of Columbia; see also Alaska v. Udall, 420 F.2d 938; 9th Cir. 1969.) Therefore, the oil companies lobbied for a settlement of the claim and played an important role in the eventual settlement. All this activity culminated in the passage and signing of the Alaska Native Claims Settlement Act on December 18, 1971.

III. Enrollment

An Alaska Native for the purpose of enrollment under ANCSA was any person having 1/4 or more Native blood (Eskimo, Aleut and/or Indian) who was alive on December 18, 1971. In the absence of proof of blood quantum, the Secretary was allowed to enroll an individual if his village considered the individual and either the individual's mother or father Native. The Secretary of the Interior did present a roll to the Alaska Natives on December 18, 1973 as required by law. However, because of the short time frame provided for in ANCSA, this roll was not complete and to this day there are still changes being made. Also, because of the short enrollment period, Congress provided in P.L. 94-204 for an additional year for individuals who were qualified for benefits, but who had missed the original filing deadline. If a Native was found eligible for benefits under the Act, he was enrolled to a regional corporation and usually to a village corporation. As of June 1977 the total number of Alaska Natives enrolled under the Alaska Native Claims Settlement Act was 78,436, of which 76,933 are entitled to full benefits under the Act and 1,504 who chose special rights under Section 19 of ANCSA (See Part IV d. of this paper).¹ Of this total, between 15 and 18 thousand were from outside the State of Alaska. This would mean that Alaska Natives residing in the State of Alaska number approximately 60,000. This compares with 51,712 Natives identified by the 1970 census.²

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IV. a. Structure — Regional Corporations

In the past, the Federal land settlements with American Indians have generally been administered by tribal governments. Very often these tribal governments have had the dual responsibility of managing the monetary and/or land assets of the tribe and also of providing government services. Unfortunately, the governmental aspects of the tribe at times conflicted with the economic responsibilities. Also, the tribal governments have a special trust relationship with the Federal government who oversees the activities of the tribe.

ANCSA provides a totally new structure for Native claims settlements. A minimum of seven and a maximum of twelve regional profit-making corporations were to be set up under the provisions of the Act. The incorporators for these corporations were to come from the Native Associations which were active in the formation of the Alaska Federation of Natives and the activities leading up to the passage of the Act. Twelve corporations were set up by the middle of 1972 and are now functioning and carrying out their responsibilities under the Settlement Act.

The regional corporations are geographically based and boundaries were determined more or less by boundaries of the old regional Native associations. Final negotiations were carried out between regional corporations to determine the exact boundaries and in several cases these negotiations ended up in court. (See Bristol Bay Native Corporation v. Cook Inlet Region, Inc., & U.S. No. A37-73, U.S.D.C. — Alaska)

The regional Native corporations set up under Alaska corporate law have the same functions and responsibilities as...