Look Back to Go Forward

• Publication year: 2017

§ 33 Alaska L. Rev. 287. LOOK BACK TO GO FORWARD

Alaska Law Review
Volume 33, No. 2, December 2016
Cited: 33 Alaska L. Rev. 287

LOOK BACK TO GO FORWARD

ELIZABETH SAAGULIK HENSLEY, Esq. ^[*]

INTRODUCTION

This paper addresses the topic "The Alaska Native Claims Settlement Act and The Future of Tribal Jurisdiction in Alaska." It begins with a brief introduction to ANCSA, turning next to a discussion of Alaska Native nationhood and aboriginal title. It then provides an overview of the three foundational American acts that discussed Alaska Native aboriginal title: the Treaty of Cession, the Organic Act, and the Statehood Act. From there, it introduces the Alaska reservation era, the Indian Reorganization and Allotment Acts as applied in Alaska, and post-ANCSA tribal jurisdiction. Finally, it presents concepts and questions for legal practitioners to reflect upon in light of the legal foundation of the Alaska Native corporate and tribal jurisdictional worlds, the developments over the past forty-five years, and as we move forward into the future.

A BRIEF INTRODUCTION TO ANCSA

"A controversy of immense proportions is rapidly coming to a head in Alaska," begins the twenty-four-year-old University of Alaska Inupiaq graduate student's essay-turned-newspaper-article-turned-land-claims-manifesto published in 1966 alerting the world that Alaska Natives claimed title to 100 percent of the land in Alaska. ^[1] The essay continues:

It is a situation which has lain dormant (except for sporadic outbursts) since Alaska was purchased from Russia in 1867. This problem has been skirted by Congress, alternately grappled with by the Department of Interior then dropped to allow the furor to settle, kept Alaskan political leaders frustrated, and the courts have ruled time and again - but never with finality nor clarity. The problem is simply this: What are the rights of the Alaska Natives to the property and resources upon which they have lived since time immemorial? ^[2]

After five years of concentrated efforts, the 92nd Congress legislated an extremely potent solution to the claim of aboriginal title to lands in Alaska by passing the Alaska Native Claims Settlement Act (ANCSA) in 1971. ^[3] In exchange for the extinguishment of aboriginal title to lands and waters and aboriginal hunting and fishing rights, ^[4] ANCSA mandated transfer of fee simple title for forty million acres of land to twelve regional and more than 200 village corporations ^[5] to be established pursuant to Alaska state law. ^[6] It also provided for monetary compensation in the amount of $962.5 million. ^[7] Alaska Native people alive on December 18, 1971 were entitled to enroll as shareholders of a regional corporation and a village corporation. ^[8]

The Conference Committee Report that accompanied ANCSA mandated that the Secretary of the Interior and the State of Alaska protect subsistence hunting and fishing. ^[9] Title VIII of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) and its implementing regulations guarantee "rural" residents' rights to subsistence, ^[10] but no statute protects Alaska Native rights directly. The legacy of ANCSA on the question of subsistence hunting and fishing is clear if the conference report is honored. However, the battles waged over the last forty-five years tell a different story.

ALASKA NATIVE NATIONS AND ABORIGINAL TITLE

Indigenous communities in Alaska operated as sovereigns with distinct territories until relatively recent times. For example, the late Robert Nasruk Cleveland of the Black River in northwest Alaska described the historical political organization of the Inupiat of northwest Alaska as "nations, just like France, Germany and England are today." ^[11] He explained to anthropologist Tiger Burch, Jr. that through the early nineteenth century, eleven nations existed in the 40,000 square mile area of northwest Alaska. ^[12] Burch wrote, "Like modern nations, those of early nineteenth-century northern Alaska had dominion over separate territories, their citizens thought of themselves as being separate peoples, and they engaged one another in war and in trade." ^[13]

The concept of aboriginal title was first introduced in U.S. jurisprudence in Johnson v. M'Intosh in 1823, ^[14] one of the three foundational federal Indian law cases handed down by the U.S. Supreme Court in the early 1800s. ^[15] Johnson v. M'Intosh characterized aboriginal title as a common law doctrine that indigenous peoples have an exclusive usufructury right in the lands they customarily and traditionally used and occupied and which were subsequently "discovered" by European settlers. ^[16] The decision established that the U.S. government could extinguish aboriginal title. ^[17]

FOUNDATIONAL AMERICAN LAW AND ALASKA NATIVES

Reference to Alaska Natives was specifically made in three foundational American acts: the 1867 Treaty of Cession, ^[18] the 1884 Organic Act, ^[19] and the 1958 Alaska Statehood Act. ^[20] They established the foundation upon which future legislation addressing Alaska Native rights would be built.

Treaty of Cession

The U.S. purchased Alaska from Russia on March 30, 1867 through the Treaty of Cession, which President Andrew Johnson signed and the U.S. Senate ratified. ^[21] Article 3 of the Treaty of Cession briefly addressed Alaska Natives in the following language:

The inhabitants of the ceded territory, if they should prefer to remain in the ceded territory, they, with the exception of the uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations the United States may, from time to time, adopt in regard to aboriginal tribes of that country. ^[22]

This section of the Treaty offered the non-Native people in Alaska the enjoyment of the rights, advantages, and immunities of U.S. citizens. It allowed them to enjoy their liberty, property, and religion. It did not offer the same freedoms to Alaska Native people; they would be subject to the laws and regulations the U.S. would create especially for them, from time to time. The last sentence of Article 3 has been read to apply the whole body of federal Indian law to Alaska Natives. ^[23] When confronted with the issue, federal courts have applied the legal principles of the Marshall Trilogy to hold that the U.S. has the right and duty to protect Alaska Native aboriginal title, as with all Native Americans. ^[24]

Organic Act

The Organic Act of 1884 acknowledged aboriginal title generally, but it sidestepped the question of titling those interests, providing in Section 8, "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 but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress." ^[25] This provision preserved the state of aboriginal title under the Treaty of Cession without determining specific property rights of Alaska Natives or non-Natives. ^[26]

Statehood Act

The 1958 Statehood Act Section 6(b) granted the new State of Alaska the right to select 103 million acres of "vacant, unappropriated and unreserved" public lands in Alaska. ^[27] Section 4 of the Statehood Act provided:

As a compact with the United States said State and its people do agree and declare that they forever disclaim all right and title to any lands or other property not granted or confirmed to the State or its political subdivisions by or under the authority of this Act, the right or title to which is held by the United States or is subject to disposition by the United States, and 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 by the United States in trust for said natives; that all such lands or other property, belonging to the United States or which may belong to said natives, shall be and remain under the absolute jurisdiction and control of the United States until disposed of under its authority, except to such extent as the Congress has prescribed or may hereafter prescribe, and except when held by individual natives in fee without restrictions on alienation . . . . ^[28]

Alaska Natives protested the state's land selections to the Department of the Interior on the basis of their continued use and occupancy. ^[29] In response to these protests and to protect Alaska Native land rights, Secretary of the Interior Stewart Udall temporarily suspended issuance of patents and temporary approvals to the State in 1966. ^[30] The State sued to compel Secretary Udall to issue the patents and temporary approvals. ^[31] The Alaska District Court granted the State's motion for summary judgment on the basis that Alaska Native use did not prevent the land from being "vacant, unappropriated and unreserved" and therefore was available under Section 6(b). ^[32] The Ninth Circuit Court of Appeals reversed and remanded for trial, citing U.S. v. Berrigan, a 1905 Alaska District Court case. ^[33] That case had specifically held that both the Treaty of Cession and the 1884 Organic Act "provided for the protection of the...