ALASKA NATIVE CLAIMS SETTLEMENT ACT OF 1971

(PUBLIC LAW 92-203):
HISTORY AND ANALYSIS TOGETHER WITH SUBSEQUENT AMENDMENTS

by
Richard S. Jones
Report No. 81-127 GOV
June 1, 1981

[ANCSA History71 Footnotes]

1"Russian Administration of Alaska and the Status of the Alaskan Natives," 81st Congress, 2nd Session, Senate Document No. 152, U.S. Government Printing Office, Washington, 1950, p. 2.

2Ibid.

3Ibid.

4"Russian Administration," p. 7.

5"Russian Administration," p. 11.

6"Russian Administration," p. 17.

7"Russian Administration," p. 11. Cf. the translated sections of the 1821 and 1844 Charters which appear in this document.

8In re: Minook (2 Alaska Reports 200) (1904); United States v. Berrigan (2 Alaska Reports 445) (1905).

Cf. "Russian Administration," p. 12, for a commentary on this passage:

"Only one objection may be made against the view expressed in this passage. The view that the Christian faith was a prerequisite for the recognition of a tribe as settled does not find any support in the Russian laws. These definitely provided for the possibility of existence of pagans among the tribes who, otherwise, were considered settled and enjoyed the status of the same. Thus section 248 of the Charter of 1844 stated:

'248. The settled tribes professing the Christian belief are not designated by any special name; those professing the native faith shall be styled for the purpose of identification "settled tribes of other religions." '

"Moreover, the exercise of native faith was expressly guaranteed (sections 271-273). However, at the time of the cession of Alaska all dependent tribes were in fact Christians and in that sense the decision has correctly described the situation by stating that the settled tribes 'supported a Russian Church, attended and assisted in its services, and practiced the moral precepts taught therein.' Yet, although all settled tribes were Christians there were also tribes professing Christianity who did not have the status of settled tribes but were either not wholly or totally independent. . . ."

9A discussion of the difficulties encountered in determining which specific tribes were considered as falling in which category appears in "Russian Administration of Alaska and the Status of the Alaskan Natives," April 6, 1950, pp. 17-23. Further explication of Russian classification of natives is found in a Russian memorandum dated October 8, 1867, which describes the Russian imperial system of Russian America and contains "general characteristics of various tribes." ("Russian Administration," p. 53, Appendix 3, No. 1.) (From Alaskan Boundary Tribunal, Proceedings, vol. 2 [1904], pp. 317-318).

10"Russian Administration," p. 17.

11Ibid.

12"Russian Administration," p. 14.

13Ibid.

14"Russian Administration," p. 23.

15Cf. Miller v. the United States (159 F. 2nd 997) (1947) and Tee Hit Ton Indians v. the United States (120 F. Supp. 202, 205 [1954]), pp. 27-29 below.

Article VI reads:

"Cession of territory and dominion here made is hereby declared to be free and unencumbered by any reservations, privileges, franchises, grants, or possession, by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders; and the cessation hereby made, conveys all the rights, franchises and privileges now belonging to Russia in the said territory or dominion and appurtenances thereto."

Article II states:

In the cession of territory and dominion made by the preceding article (Article I) are included the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property."

It was the government's contention in the above-cited cases that these clauses forever freed the United States from any claim of aboriginal title in the natives.

16A second piece of legislation granting individual title to Alaska natives was the Townsite Act of 1926 (44 Stat. 620). Sec. 1 of this Act contained a provision making it possible for natives to obtain title to lots they were occupying in townsites surveyed under the general authority of the Act of March 3, 1891 (26 Stat. 1099).

Finally, the Act of May 17, 1956 (70 Stat. 954) included Aleuts as eligible applicants for homestead allotments and allowed allotments in national forests, if founded on occupancy prior to establishment of the particular forests, and if certified by the Department of Agriculture as chiefly valuable for agriculture or grazing. The 1956 Act required natives to offer satisfactory proof to the Secretary of the Interior of "substantially continuous use for a period of five years."

(The Alaska Native Allotment Act was repealed by sec. 18 of the Alaska Native Claims Settlement Act of 1971 (Cf. p, 83 below).

17Following passage of the General Allotment Act of 1887, Congress set aside in 1891 the 86,000-acre Annette Island Reservation for use by the Metlakatla Indians who had recently emigrated to Alaska from British Columbia. (Act of 1891 26 Stat. 1095, 1101 [sec. 15]). Establishment of the Annette Island Reservation was contrary to the government policy of allotment, however, and was the only reservation created in Alaska before 1900. Pleas of the native Alaskan Tlingit and Haida Indians for a reservation were ignored in accordance with the Federal policy spelled out in 1889 by the Commission of Indian Affairs:

"(1) The reservation system belongs to the past, (2) Indians must be absorbed into our national life, not as Indians but as American citizens, (3) the Indian must be 'individualized' and treated as an individual by the Government, (4) the Indian must conform to the White man's ways, peacably (sic) if they will, forceably (sic) if they must, (5) the Indian must be prepared for the new order through a system of compulsory education, and (6) the traditional society of Indian groups must be broken up." (U.S. Department of the Interior, U S. Indian Service, "A Sketch of the Development of the Bureau of Indian Affairs and of Indian Policy, May 1962, p. 583).

Klukwan (Chilkat Village) was established as a reservation by Executive Order 1764 (April 21, 1913), redefined by Executive Order 3673 (May 15, 1922) and enlarged by Public Law 85-271 (71 Stat. 596).

1849 L.D. 592 (1923).Cf. Federal Indian Law (U. S. Department of the Interior) (Washington, U. S. Government Printing Office, 1958), p. 935.

18a53. I.D. 594 (1932).

The Citizenship Act of 1924 (43 Stat. 252) had declared all noncitizen Indians born within the United States to be American citizens. The Alaska court subsequently held that the Tlingit Indians were thus naturalized under the Citizenship Act as "noncitizen Indians born within the territorial limits of the United States" (U.S. v. Lynch, 7 Alaska Reports 568) (1927). The Department of the Interior held that "as Indians of Alaska are within the category of natives of Alaska and as the term 'Indian' is to be so construed as to include the aboriginal races inhabiting Alaska, the ruling of the court in the Lynch case would seem to be equally applicable to all other natives of that Territory." (53 I.D. 596) (1932).

See also 52 I.D. 597 (1929); and 49 L.D. 592 (1923).

In fact, two court decisions had previously ruled that sec. 6 of the General Allotment Act, which granted citizenship to "Indians adopting civilized" life was applicable in Alaska (In re Minook 2 Alaska 200 [1904] and Nagle v. United States, 191 Fed. 141 [1911]). For a contrary decision, however, see In Re Incorporation of Haines Mission (3 Alaska Reports, 588) (1908).

19"Russian Administration," p. 24.

20Federal Indian Law, p. 951.

21Sec. 14 of the Act of March 3, 1891, to repeal timber culture laws and for other purposes, provides that "none of the provisions of the last two sections of this act shall be so construed as to warrant the sale of any lands belonging to the United States which shall contain coal or the precious metals, or any town site, or which shall be occupied by the United States for public purposes, or to which the natives of Alaska have prior rights by virtue of actual occupation. . . .

Sec. 7 of the Act of May 14, 1898, extending the homestead laws to Alaska, provides that "this act shall not apply to any lands within the limits of any military, park, Indian, or other reservation unless such right of way shall be provided for by Act of Congress."

Section 10 of this act proves "that the Secretary of the Interior shall reserve for the use of the natives of Alaska suitable tracts of land along the water front of any stream, inlet, bay, or sea shore for landing places for canoes and other craft used by such natives."

Sec. 27 of the Act of June 6, 1900, making further provision for the civil government of Alaska, provides that "the Indians or persons conducting schools or missions in the district shall not be disturbed in the possession of any lands now actually in their use or occupation, and the land, at any station not exceeding six hundred and forty acres, now occupied as missionary stations among the Indian tribes in the section, with the improvements thereon erected by or for such societies, shall be continued in the occupancy of the several religious societies to which the missionary stations belong . . . "

22Under authority of this Act the following reservations were created:

RESERVATION EFFECTIVE DATE PROCLAMATION
Akutan December 20, 1943 Federal Register,
June 9, 1943, p. 7731
Diomede October 20, 1946 Federal Register,
June 6, 1946, p. 6143
Hydaburg April 24, 1950 Federal Register,
December 7, 1949, p. 7318
Karluk May 23, 1944 Federal Register,
June 22, 1943, p. 8557
Unalakleet April 20, 1942 Federal Register,
January 27, 1942, p. 548
Venetie March 1, 1944 Federal Register,
June 9, 1943, p. 7732
Wales March 11, 1944 Federal Register,
July 10, 1943, p. 9464

There were other areas such as Shungnak, Barrow, and Shishmaref where lands were withdrawn with the intent of creating a reservation under the terms of the 1936 Act but the natives voted against the action. Although there were seven reservations created and approved by the natives, the Federal District Court (107 Fed. Supp. 697) ruled that Hydaburg was not validly created.

23Report to the Secretary of the Interior by the Task Force on Alaska Native Affairs, December 28, 1962, pp. 63-64. (Cf. Sec. 19 of the Alaska Native Claims Act [p. 83 below], providing for revocation of reservations in Alaska [with certain exceptions].)

24Cf. 329 U.S. 52:

". . . yet it cannot be doubted that, given the consent of the United States to be sued, recovery may be had for an involuntary, uncompensated taking of 'recognized' title. We think the same rule applicable to a taking of original Indian title. 'Whether this tract . . . was properly called a reservation . . . or unceded Indian country, . . . is a matter of little moment . . . the Indian's right of occupancy has always been held to be sacred; something not to be taken from him except by his consent, and then upon such consideration as should be agreed upon.' Minnesota v. Hitchcock, 185 U.S. 373, 388-89 (1902)."

25The Supreme Court explained that adjudication of such claims must be authorized by Congress:

"Until now this Court has had no opportunity or occasion to pass upon the precise issue presented here. In only one Act prior to 1935 has Congress authorized judicial determination of the right to recover for a taking of nothing more than original Indian title; and no case under that Act, passed in 1929, (45 Stat. 1256, as amended in respects immaterial here, 47 Stat. 307), reached this Court (Coos Bay Indian Tribe v. United States, 87 Ct. Cl. 143 [1938], discussed infra, p. 50, arose under the 1929 Act). In 1930 (46 Stat. 531, amending 44 Stat. 1263, Assiniboine Indian Tribe v. United States, 77 Ct. Cl. 347 [1933] was litigated under this jurisdictional act) Congress again authorized adjudication of Indian claims arising out of original Indian title, but expressly directed an award of damages if a taking of lands held by immemorial possession were shown. This Act thus eliminated any judicial determination of a right to recover, once original Indian title was established.

"Prior to 1929, adjudications of Indian claims against the United States were limited to issues arising out of treaties, statutes, or other events and transactions carefully designated by Congress. This Court has always strictly construed such jurisdictional acts and has not offered judicial opinion on the justness of the handling of Indian lands, except insofar as Congress in specific language has permitted its justiciable recognition.

"The language of the 1935 Act is specific, and its consequences are clear. By this Act Congress neither admitted nor denied liability. The Act removes the impediments of sovereign immunity and lapse of time and provides for judicial determination of the designated claims. No new right or cause of action is created. A merely moral claim is not made a legal one. The cases are to be heard on their merits and decided according to legal principles pertinent to the issues which might be presented under the Act (United States v. Mille Lac Chippewas, 229 U.S. 48, 500 [1913]; The Sac and Fox Indians, 220 U.S. 481, 489 [1911]). Accordingly, the 1935 statute permits judicial determination of the legal and equitable claims growing out of original Indian title. That which was within the power of Congress to withhold from judicial scrutiny has now been submitted to the courts. If, as has many times been said (United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 347 [1941], and cases note 27 infra), the manner of extinguishing Indian title is usually a political question and presents a non-justiciable issue, Congress has expressly and effectively directed otherwise by seeking in the 1935 Act judicial disposition of claims arising from original Indian title. 'By consenting to be sued, and submitting the decision to judicial question, they have considered it as a purely judicial question, which we are now bound to decide, as between man and man. . . ." (United States v. Arredondo, 6 Pet. 691, 711 [1832]). (329 U.S. 44-46.)

In short, a tribe could not sue the United States for claims arising out of aboriginal title unless authorized to do so by Congress.

26This suit was authorized by 28 U.S.C. 1505:

"505. Indian Claims.
"The Court of Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive order of the President, or is one which otherwise would be cognizable in the Court of Claims if the claimant were not an Indian tribe, band or group. (Added May 24, 1949, ch. 139, 89 (a), 63 Stat. 102)."

The Act of August 13, 1946 (60 Stat. 1049) created the Indian Claims Commission as a forum for suits against the United States in connection with Indian claims arising prior to August 13, 1946 by any "identifiable group" of Indian claimants residing in the United States and Alaska. All such pending claims of Alaska natives were extinguished by provision of sec. 4 of the Alaska Native Claims Settlement Act (Cf. p. 46, below).

27Four years earlier, the Supreme Court had unanimously found that compensation granted to the Tillamooks by the Court of Claims (87 F. Supp. 938) (1950) pursuant to the Supreme Court decision of 1946 (329 U.S. 40. Cf. p. 24 above) was not based upon a taking under the Fifth Amendment. On the basis of this finding the Court denied the payment of interest which had been awarded by the Court of Claims (Cf. 341 U.S. 48) (1951).

28Report to the Secretary of the Interior by the Task Force on Alaska Native Affairs, December 28, 1962, pp. 55-56.

29Source: "Alaska Native Claims Settlement Act." Conference Report to Accompany H.R. 10367. House of Representatives. 92nd Congress, lst Session. Report No. 92-746. December 13, 1971, pp. 35-39.


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