Sovereignty and Subsistence: Native Self-government and Rights to Hunt, Fish, and Gather After Ancsa

• Jurisdiction: United States,Federal
• Publication year: 2017
• Citation: Vol. 34

§ 33 Alaska L. Rev. 187. SOVEREIGNTY AND SUBSISTENCE: NATIVE SELF-GOVERNMENT AND RIGHTS TO HUNT, FISH, AND GATHER AFTER ANCSA

Alaska Law Review
Volume 33, No. 2, December 2016
Cited: 33 Alaska L. Rev. 187

SOVEREIGNTY AND SUBSISTENCE: NATIVE SELF-GOVERNMENT AND RIGHTS TO HUNT, FISH, AND GATHER AFTER ANCSA

ROBERT T. ANDERSON ^[*]

ABSTRACT

The Alaska Native Claims Settlement Act (ANCSA) was passed in 1971 to extinguish aboriginal rights of Alaska Natives and provide compensation for those rights extinguished. Instead of vesting assets (land and money) in tribal governments, Congress required the formation of Alaska Native corporations to receive and hold these assets. A major flaw in the settlement was the failure to provide statutory protections for the aboriginal hunting, fishing, and gathering rights extinguished by ANCSA. Moreover, while ANCSA did not directly address Alaska Native tribal status or jurisdiction, the Supreme Court interpreted the Act to terminate the Indian country status of ANCSA land. Subsequently, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) was adopted in 1980 to provide a subsistence priority for rural Alaska residents, but the approach contemplated in Title VIII failed due to the State of Alaska's unwillingness to participate. On the self-government front, state and federal courts have joined the federal Executive Branch and Congress in recognizing that Alaska Native tribes have the same legal status as other federally recognized tribes in the lower forty-eight states. The Obama Administration recently changed its regulations to allow land to be taken in trust for Alaska Native tribes, and thus be considered Indian country subject to tribal jurisdiction, and generally precluding most state authority. This article explains these developments and offers suggestions for a legal and policy path forward.

INTRODUCTION

Indigenous occupancy of what is now Alaska began over 11,000 years ago, and Russian exploration of coastal areas began in the mid-eighteenth century. Russia claimed ownership of Alaska by virtue of "discovery" and passed the rights it claimed to the United States by treaty in 1867. Piecemeal encroachment on tribal territories by the government increased over time, as Alaska's non-Native population expanded. Alaska Natives, like all other indigenous populations within what became the United States, possessed property rights in the form of aboriginal title, which is based on principles of international law adopted as federal common law. ^[1] Part I of this Article outlines the history of Alaska Native aboriginal rights prior to passage of the Alaska Native Claims Settlement Act (ANCSA). Part II reviews the history of ANCSA, its structure, and its effect on tribal sovereignty and hunting and fishing rights. Part III examines the post-ANCSA judicial and congressional treatment of Alaska Native sovereignty and subsistence uses, and offers suggestions for improvements.

The view that Alaska Natives possessed property rights and rights to self-government under federal law became the accepted view of the national government, but there was little pressure to deal with Alaska Native land claims until the 1950s when statehood became a reality. Although statehood itself did not affect aboriginal title, it was the first in a series of events that led Congress to pass ANCSA in 1971. ^[2] ANCSA extinguished aboriginal title, but left unresolved important questions regarding tribal sovereignty and Native hunting and fishing rights. The sovereign status of Alaska Native villages has been confirmed, though their territorial sovereignty was severely limited by the Supreme Court's interpretation of ANCSA in Alaska v. Native Village of Venetie Tribal Government. ^[3]

However, tribal sovereignty decisions from federal and state courts, along with recent Obama Administration action permitting land to be taken in trust for Alaska Native tribes, point toward an expansion of Native self-governance. The main vehicle for protecting tribal access to fish and game in all lands in Alaska, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA), ^[4] relied on a cooperative federalism model that has failed due to the State of Alaska's unwillingness to participate in a regime it initially supported. Forty-five years after ANCSA's passage, it is evident that congressional and federal administrative action is needed to remedy these flaws in the Settlement Act.

I. ABORIGINAL TITLE IN ALASKA ^[5]

When the United States acquired Alaska from Russia in 1867 pursuant to the Treaty of Cession, ^[6] what is now the State of Alaska was essentially unknown and unexplored by non-Native ^[7] people. Article III of the Treaty provided that "[t]he uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country." ^[8] In essence, the United States stepped into Russia's shoes with respect to its relationship with the people who inhabited Alaska and occupied the land and waters. ^[9] The plain import of the provision in the treaty was that general federal law governing Native rights was applicable.

Congress did nothing to suggest otherwise in subsequent actions. In 1868, Congress designated Alaska as a "customs collection district" and extended United States laws relating to customs, commerce, and navigation over the "mainland, islands, and waters of the territory" of Alaska. ^[10] Under federal law, this designation had no legal or practical effect on Alaska Natives, and simply began a congressional practice of legislating for Alaska on a piecemeal basis with no consideration of Alaska Native rights. ^[11] The United States was essentially a colonizing nation asserting rights without much regard to the indigenous population.

What was the law regarding the indigenous inhabitants in areas that came to be claimed by the United States? Under general principles of international law, discovering nations acquired the exclusive right to deal with indigenous peoples with respect to matters of land ownership and intergovernmental relations. ^[12] In Johnson v. M'Intosh, ^[13] Chief Justice Marshall explained that under this so-called Doctrine of Discovery, indigenous tribes have a "legal as well as just claim to retain possession of [the lands]" they historically occupied. ^[14]

Following M'Intosh, the rights of the discovering nation, Russia and then the United States, would similarly consist of a technical legal title plus the "right of preemption"-the right to acquire the full beneficial title to land used and occupied by the indigenous occupants. ^[15] The right of Alaska Natives to use and occupy their lands (i.e., their rights as property owners) would be labeled by federal law to be aboriginal title, or original Indian title. Of course, the Alaska Natives had no such understanding, much less agreement, with the proposition that Russia, the United States, or any other country could divest the Native peoples of their rights to soil and their way of life without their voluntary consent. Chief Justice Marshall was aware of the arrogance of the legal proposition introduced in M'Intosh:

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. ^[16]

Thus, the United States' legal claim to title was rooted in Supreme Court precedent, and the framework for eventual extinguishment of Alaska Native aboriginal title was in place. ^[17]

It is now generally accepted that prior to adoption of ANCSA, ^[18] Alaska Natives possessed unextinguished aboriginal title, which included hunting, fishing and gathering rights. ^[19] There were indigenous people and societies on the ground in Alaska, and they had their own systems of governance and land use rights. ^[20] In retrospect, it seems ludicrous to think that the notion of indigenous land rights was even a matter of debate. As one Native leader described the concept of land "ownership," it is plain that the Native system recognized its own form of property rights:

The notion of private ownership was alien to most of our people. We had lived throughout the length and breadth of Alaska, using the land as our forefathers had, becoming intimate with its ways as it nurtured, however grudgingly at times, our existence . . . . A house built by the leader of a family would "belong" to him and his relatives in a loose sense[.] ^[21]

The author further explained that the advent of reorganized tribal governance under the Indian Reorganization Act "didn't change very much the ways we had shared the land for generations." ^[22]

Native tribes establish their aboriginal title in United States courts by demonstrating actual use and/or occupation of an area on a continuous basis, except for periods of involuntary dispossession, and this property right is not "based upon a treaty, statute, or other formal government action." ^[23] In Tlingit and Haida Indians v. United States, ^[24] the court of claims affirmed the existence of aboriginal title among the Tlingit and Haida Indians of Alaska, stating that "land and water owned and claimed by each local clan division in a village was usually...