A Tribal Advocate's Critique of Proposed Ancsa Amendments: Perpetuating a Broken Corporate Assimilationist Policy

• Publication year: 2016

§ 33 Alaska L. Rev. 303. A TRIBAL ADVOCATE'S CRITIQUE OF PROPOSED ANCSA AMENDMENTS: PERPETUATING A BROKEN CORPORATE ASSIMILATIONIST POLICY

Alaska Law Review
Volume 33, No. 2, December 2016
Cited: 33 Alaska L. Rev. 303

A TRIBAL ADVOCATE'S CRITIQUE OF PROPOSED ANCSA AMENDMENTS: PERPETUATING A BROKEN CORPORATE ASSIMILATIONIST POLICY

VANCE A. Sanders ^[*]

INTRODUCTION

On March 26, 2015, Alaska Senators Murkowski and Sullivan introduced S.872, the Unrecognized Southeast Alaska Native Communities Recognition and Compensation Act. ^[1] On July 14, 2016, those Alaska Senators introduced S. 3273, the Alaska Native Claims Settle Act Improvement Act. ^[2] These bills have a common objective: to "recognize" an undetermined number of individual Alaska Native residents, or their heirs, in Ketchikan, Wrangell, Petersburg, Haines, and Tenakee and allow them to organize as urban corporations under the Alaska Native Claims Settlement Act (ANCSA). ^[3] Once incorporated, the Secretary of the Interior would offer each of these five newly-minted corporations 23,040 acres of land (a township each, or 115,200 acres total) as compensation for the extinguishment of their aboriginal claims. ^[4] Ostensibly, the creation of these five corporations, and conveyance of a township each rectifies these communities' exclusion from ANCSA forty-five years ago. ^[5] The proposed methodology for that "recognition"- perpetuation of a failed engrafted corporate model on Alaska villages- is an assimilationist approach. Rather, in recognition of the serious limitations of the ANCSA corporate model, tribal, subsistence, and Native cultural advocates should seek to amend this legislation to provide that land for each of these omitted villages be conveyed to the Secretary of the Interior and held in trust for the four Alaska Tribes and the traditional Tenakee Clan. Alternatively, one corporation could be created for all five communities with one township conveyed by the Secretary of the Interior in Trust for the Tribes and the Clan. The bottom line: this legislation, as introduced, is fundamentally flawed and should be opposed by Alaska Tribal advocates and all others who depend on the truly renewable resources of the Tongass National Forest.

ALASKA TRIBAL STATUS: GOVERNMENT-TO-GOVERNMENT

Alaska Natives have inhabited present-day Alaska for many thousands of years. Their status as "tribes" was formally acknowledged beginning with Article III of the 1867 Treaty of Cession, through which the United States of America "acquired" Russia's interest in Alaska. ^[6] That Treaty divided the population of Alaska into two categories, "inhabitants" and "uncivilized native tribes." ^[7] The "inhabitants" were to be admitted to United States citizenship or permitted to return to Russia. ^[8] The "uncivilized native tribes," meanwhile, were summarily excluded as citizens and "subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country." ^[9] The unchallenged interpretation of this provision through present is that the treaty applies the whole body of federal Indian and statutory law to Alaska tribes. ^[10]

In 1993-126 years after the Treaty of Cession and twenty-two years after ANCSA's passage-buoyed by an exhaustive solicitor's opinion, the Department of the Interior published a list of the federally recognized Alaska tribes. ^[11] The next year, Congress enacted the Federally Recognized Tribe List Act of 1994. ^[12] This statute directed the Department of the Interior annually to publish the list of recognized tribes; it has done so since that year. ^[13] By January 2015, the list included 235 Alaska Native tribes. Among those listed are the Ketchikan Indian Corporation, Wrangell Cooperative Association, Petersburg Indian Association, and Chilkoot Indian Association (Haines). ^[14] Tenakee has not been and is not now on that list since it has not met the criteria for inclusion. ^[15] However, Tenakee is the customary and traditional use area for the Wooshikitaan Clan. ^[16]

The Tribe List Act specifically prohibited the Department of the Interior from removing any tribe from the list absent an act of Congress. ^[17] Both the federal ^[18] and state courts ^[19] have held this list dispositive. Alaska's executive branch has followed the lead of the courts. ^[20] Given recognition of the Alaska Native tribes by the federal and Alaska state courts, as well as the federal and state executive branches and Congress, tribal status in Alaska is well established. Indeed, Alaska Natives have the same status as tribes elsewhere in the country. And they have since begun to exercise those government-to-government powers in ways Alaska's Congressional delegation has yet to fully understand.

ANCSA's Corporate Model Is Inimical To Alaska Tribes AND SHOULD NOT BE PERPETUATED BY NEW ANCSA LEGISLATION

In 1971, Congress passed the Alaska Native Claims Settlement Act (ANCSA) to extinguish Alaska aboriginal title to Alaska lands in consideration for title to some forty-four million acres of land and almost $1 billion. ^[21] Alaska Natives "supported ANCSA as a formal recognition of their longstanding use and occupancy of the land. They thought it would safeguard their traditional subsistence-based economy by securing title to that land for generations." ^[22] The corporate model chosen by Congress to implement the landholding portion of the settlement doomed that fundamental hope:

[C]ongress did not convey the land to tribal entities. When Congress enacted ANCSA, it considered tribal governments to be an impediment to assimilation. Instead, the law required the Natives to set up village and regional corporations to obtain title to the land. The land that ANCSA conveyed does not belong to Alaska Natives, it belongs to these corporations. Hence, the Native corporations are the most visible structures established under this legislation. But these corporate structures put the land at risk. For Native land is now a corporate asset. Alaska Natives fear that, through corporate failure, corporate takeovers, and taxation, they could lose their land. ^[23]

Any policy maker serious about protecting Alaska aboriginal peoples' ties to the land and its renewable resources should also heed the Alaska Native Review Commission's prescient findings. Among those findings, made after holding extensive field hearings all over Alaska from 1983 to 1985, close in time to ANCSA's enactment, are:

In 1971, Alaska Natives believed that, if they owned their own land, they could protect the traditional economy and a village way of life. Subsistence is at the core of village life, and land is the core of subsistence. You cannot protect the one unless you protect the other. [ANCSA] has protected neither. One of the ironies of ANCSA is that, in Alaska, where the Native peoples live closer to the land and sea, with greater opportunities for self-sufficiency than Natives of any other state, they have no clearly defined tribal rights, no rights as Native peoples to fish or wildlife. Elsewhere in the United States and Canada, Native communities enjoy special rights. ANCSA extinguished aboriginal hunting and fishing rights throughout Alaska. ^[24]

It is remarkable how little ANCSA assimilationist policy has changed on the federal level in the thirty years since the publication of Village Journey. This seminal work's findings surprise no one-then or now.

A 1985 Department of the Interior study on the effects of ANCSA's implementation observed:

[O]ne must bear in mind the limitations of the corporate form of organization as a means of delivering benefits. Corporations can transfer money directly to the shareholders either by giving them jobs or by paying them dividends. ANCSA corporations have only been able to employ a small fraction of Natives, and most corporations have been unable to pay significant dividends. ^[25]

More recently, in 2013, the Indian Law and Order Commission, formed by Congress to investigate criminal jurisdiction in Indian country, shed light on the deplorable public safety conditions in Alaska Native communities, and recommended remedying those conditions. ^[26] Here, the Commission report acknowledged that "a number of strong arguments can be made that [Alaska fee] land may be taken into trust and treated as Indian country" and "[n]othing in ANCSA expressly barred the treatment of former [Alaska] reservation and other Tribal fee lands as Indian country." ^[27] The Commission recommended allowing these lands to be placed in trust for Alaska Natives, ^[28] a recommendation endorsed by the Secretarial Commission on Indian Trust Administration and Reform, established by former Secretary of the Interior Ken Salazar. ^[29]

With these policy recommendations for reform, spanning thirty years, one may reasonably ask why Alaska Senators Murkowski and Sullivan and Representative Young would propose any ANCSA amendments that utilize the ill-considered and wholly ineffective corporate model. ^[30] Unless an Alaska...