The following are public statements provided at hearings held in Fairbanks and Anchorage the 17th and 18th of October 1969 prior to the passage of ANCSA. They provide the reader with some of the issues and concerns discussed prior to the passage of ANCSA.
Arctic Slope Native Association, Barrow, Alaska
SPECIAL ESSAY ON THE "REGIONAL CORPORATION CONCEPT" AND ITS
Initially, as any organization emerges as a recognized entity, there is a background under which it began organization. It must be understood that in the early days of statehood, for the State of Alaska, concerted efforts were made by it to select lands granted by the United States Congress. In the exercise of this procedure under the Statehood Act, the State went to all corners of its boundaries seeking lands for its own.
It must also be remembered that at the time Alaska was purchased from Russia, a clause in that document conveying the territory from Russia to the United States, states in part, that the Congress reserved to itself the authority to settle the rights of the Native people of Alaska, and again in the Statehood Act itself that any selection of land by the State is subject to any valid existing rights including those of the Natives of Alaska until the Congress acts to settle the rights theretofore dormant for the last ninety-one years.
Under the two documents purporting to protect the rights of the Native people, we as Natives, felt assured that no one, not certainly our own State, would step all over us in the process of their selection. In the midst of the quiet operation of the State, and I am not exactly sure that all selections were made with proper notification, we became aware of where the selections were being made. Periodically, screams of "trespass" and you are "taking our land" were voiced from different quarters of the State. However, all screams fell on deaf ears and the selections continued and progressed without even once stopping to see who they were stepping on.
Quite suddenly then, we realized that unless we officially file protests of the selections on what we considered as "our land" nothing was going to stop. While our filing of the protests did not in themselves stop all selections, the interpretation of our protests in some departments began to take effects. It slowed down the approval or the actions necessary to grant title to applicants.
It must be emphasized here that many individuals, attorneys as well as outspoken laymen, sympathetic to our claims took an unpopular stand in support of them and until that time we were at the mercy of the aggressiveness of the State in its selections ignoring squatters in some cases, villages in others, and actual land claims by the regional associations.
2. Regionals and land claims
Thus the Regional associations began playing a real part in the whole Land Claims to its present status as, the organizations comprising the Alaska Federation of Natives itself. Without the Regional associations we have no AFN.
With the exception of a few villages in isolated cases claims were filed for reasons other than land claims, all land claims were filed by the regional associations. The desire to form a single Statewide native organization and the actual formation of it stems, began in order to give the whole movement a strong and single voice with the hope of gaining stature to attain Congressional recognition, and this, it has most effectively gained.
A simple example in the case of the Arctic Slope Native Association is very much in order. It would have been a futile effort if Barrow alone were to have filed a claim of the North Slope. Wainwright village could not have had more effect if it had done so on its own. Likewise with Pt. Hope, Barter Island and Anuktukvik Pass because we could not have, without incurring much time and that we didn't have, to arrive at reasonable boundaries of our claims by villages.
Referring back to history which was testified to by Mr. Alfred Hopson, Mr. Simon Paneak and myself with others, a great trade movement involved travel from Pt. Hope to the Canadian border, and westward from Barter Island through Barrow to Pt. Hope. All of the region on the North Slope has been used and occupied by the Eskimo people.
The feeling of relationship of the people to its land has been shared since time immemorial. Here is truly an ethnic group, sharing among others, the very pattern of life so identical, speaking the same dialect, hunting the same species of animals, having the same frame of mind, progressive, loving and God fearing.
In the application of procedures set out in S1830 proposing a single Statewide corporation to administer the judgment funds and land, there is no assurance that Barrow would receive adequate attention to its programs and needs for assistance. Likewise and moreso with Pt. Hope and other villages in the North Slope. While Barrow tends to be more reliant on its own representation, the other villages within the region on the other hand tend to rely on the leadership of Barrow. So then, the only sure way our neighbors feel they can receive adequate attention for their needs is to work through the regional headquarters in Barrow.
In going over the needed programs for Wainwright, let us assume as an example, that a ten-point program was submitted to the Statewide corporation. Let us also assume that the other two hundred villages submitted ten-point programs and take into consideration that the nine-man board would attempt to screen these programs, with no assurance that the regional associations would be represented, much less the important villages who are actually the back bone of the Statewide organization. Who can tell me that of the two thousand requests for assistance Barrow might receive some attention on the first go round, or maybe the second, perhaps the third, or if you really want to be fair about this we’ll consider Barrow at our next session. This is the situation we are facing.
Unless we adopt some procedure whereby all local applicants can be screened at the regional level, and present them by regions, there is no hope that we can give adequate attention to our local people.
The actual procedure then would be:
1. Each village would make program proposals to their regional headquarters.
2. The regionals, having representation from villages within it, makes deletions, additions to local needs, and approve and disapprove.
3. Having recommendations from all the villages in the region then come up with a package of proposals for proper presentation to the Statewide corporation.
4. The regional then having the delegated authority to negotiate, sit down as a statewide corporation and bargain in hopes of gaining approval.
5. The regional then come back from a statewide session and hand to the locals all the programs approved and complete the whole process.
It relieves the statewide nine-man board from dealing with all two hundred and twenty-five villages which is desirable.
There is no other way the villages want to operate anyway, if it were so, we would have had two hundred and twenty-five separate land claims. The utilization of the regional concept has been used in the effective organization of the Alaska Federation of Natives.
To do otherwise would be disastrous because no one would know where to start from and as many as five years could be lost in the proper administration of any judgment funds and land.
I might add in conclusion, that contrary to a Department of Interior report saying in effect that it is not necessary to have a majority of Native people on the statewide board, I feel very strongly that the natives should have majority on the boards. A mixed composition is however desirable because it would tend to give a check and balance while not materially effecting the wishes of the Natives. The same holds true in any democratic government and I need not go into that extensively.
It is also my hope that the membership in the statewide organization as is in S-1830 would be enlarged as to reflect representative from each regional corporations.
Thus concludes my personal thoughts on the need for the regional corporations.
September 24, 1969.
From: Harrison Loesch, Assistant Secretary of the Interior, Washington, D.C.
To: Mr. Frederick Paul, Attorney at Law, 1310-1411 Fourth Avenue Building, Seattle, Wash.
Your seven proposed claims attorney contracts with the members of the Arctic Slope Native Association listed below, submitted for approval June 26, 1969, are hereby disapproved pursuant to title VI of the act of April 11, 1968:
Village: Date of contract
Atkasook Community--------------------------------------------Apr. 2, 1969
Anaktuvuk Pass Community-----------------------------------Do.
Barrow Community-----------------------------------------------Apr. 1, 1969
Barter Island--------------------------------------------------------Apr. 14, 1969
Nooiksut Community---------------------------------------------Apr. 3, 1969
Point Lay Community--------------------------------------------Apr. 1, 1969
Wainwright Community------------------------------------------Apr. 3, 1969
Further information to follow by letter.
IN THE UNITED STATES DISTRICT COURT, DISTRICT OF ALASKA
FILED IN THE U.S. DISTRICT COURT, DISTRICT OF ALASKA (FAIRBANKS),
J. M. KRONINGER, CLERK, OCT. 4, 1966
The Inupiat Eskimos tribally represented as the Arctic Slope Native Association, petitioners v. The Bureau of Land Management, an agency of the Department of the Interior; the State of Alaska
Petition for injunction
The Inupiat Eskimos of Arctic Alaska, the indigenous and original occupants of that part of Alaska known as the Arctic Slope, and their duly elected group or tribal representatives known as The Arctic Native Association, the same being the sole tribal or group council authorized to do business in their name, hereby petition the Honorable Court and the Justices presiding therein for an injunction against the above named respondents to prohibit them from any further selling, leasing or subletting or in any way of further disposing of the land or the resources, or the revenue from said land, resources, or the exploratory rights to, or any other interest derived from said land lying within the boundaries of an area lying north of a line running east from the Bering Sea along the 68 deg N. latitude to the 147 deg., W. meridian, thence north along said meridian to 68 deg. 30 min. N. latitude, thence east along said latitude to the 141 deg W. meridian; an area to which the Inupiat Eskimo holds unextinguished aboriginal title by reason of use and original occupancy from time immemorial, said use and occupancy occurring until the present day, and said title has never been terminated by law, treaty, or sale.
In January 1966, said Association, for and on behalf of all Inupiat Eskimos, being duly authorized by the tribe to do so, filed a claim of protest, as prescribed by law in such cases, to demur against the violations of the Bureau of Land Management and the State of Alaska, of this unextinguished title by their arbitrary and uncompensated appropriation of said lands. To date they jointly and severally have failed to halt these practices.
Therefore petitioners pray that the Honorable Court and the Justices presiding therein, issue said injunction without delay; said injunction to continue in effect until such time as title of the Inupiat is duly resolved, or until such time as equitable compensation is granted for the expropriation of said lands, the resources and minerals thereof, as provided by law, in such like cases.
It is further requested, that all such revenues as have heretofore been realized by the State of Alaska within the area of protest, and all similar funds accrued by the Bureau of Land Management in like manner, from the sale of land leases, or of royalties derived from minerals, or the leasing of said land, or the leasing of the mineral rights of said land, be held in escrow by the United States Government until such title is resolved and, or equitable compensation is made for expropriation of same :
And that the interest accruing from such funds be allotted to the Inupiat Eskimos, in the name of their group or tribal organization, the Arctic Slope Native Association to defray legal expenses and other business expenses deemed necessary by the tribe or group in promoting and protecting their various interests:
And that the above be made a clause of said injunction.
Legal basis for request of said injunction
Recognition of Aboriginal title in like cases.
(1). Article 6 Clause 2, The Constitution of The United States.
(2). United States Treaty with Russia 1867, Article III.
(3). Johnson v. Mackintosh, 8 Wheat 543, 547
(4). Mitchell v.. United States 9 Peters 711, 745-746.
(5). H.J. 207 1947, R. Rivers amica curae, U.S. Court of Claims upholding aboriginal title.
Distinction between sovereignty and title:
(1). Louisiana Purchase Treaty 1803 conferred sovereignty and subsequent purchases gave title.
(a). Black Hawk Treaty 1832 (Enc. Britt. 11th Edition, Vol. 14 page 735: 7 Stat 347.).
(b). Shawnee Treaty 1825.
(c). Chippewa and Sioux Treaties of 1837
(d). Report of Commissioner of Indian Affairs re: purchases of Indian Titles, 1872
(2). Act of May 17, 1884, 23 Stat. 24, 26.
(3). Act of June 6, 1900, Sec. 27; 31 Stat. 321, 330.
Other acts and opinions supporting petition for injunction.
(1). Act of May 17, l884, (i.d.)
(2). Act of August 8, 1947, Sec. 3 (a).
(3). Solicitors Opinion M 31634 and concurrence of the Sec. of Int.
(4). Administrative Opinion Sec. of Int. 27 July 1945, Conclusion.
(5). Supplemental opinion Sec. of Int. 11 January 1946.
This document is submitted in the name of and on behalf of the group or tribe of aboriginal natives known as the Inupiat Eskimos, residing in, and using, and occupying the above-described area, by authority delegated to me as an officer of the Arctic Slope Native Association, said Association being the duly elected representative of the tribe or group.
Executive Director, Arctic Slope Native Association.
Now appears before me this date 28 September 1966, one Hugh Nichols known by me personally to be an officer of the Arctic Slope Native Association, and who solemnly swears to the facts as attested to in the above Document
Magistrate, 2nd Judicial District, The State of Alaska, Barrow, Alaska.
Done under my hand and seal this 28th of Sept. 1966.
[SEAL OF OFFICE]
REPLY MEMORANDUM ON BEHALF OF THE ALASKA FEDERATION OF NATIVES TO OPINION OF THE ATTORNEY GENERAL OF ALASKA CONCERNING THE AUTHORITY OF CONGRESS TO PROVIDE FOR AN OVERRIDING ROYALTY FOR THE NATIVES OF ALASKA
In identical letters of September 5 and 8 (hereinafter referred to as the "State Brief"), to Chairman Aspinall and Chairman Jackson, respectively, Attorney General Edwards of Alaska formally states his reasons for believing that an overriding royalty would conflict with the Alaska Statehood Act (Pub. I. 85-508, July 7, 1958, 72 Stat. 339, 48 U.S.C.A.) (1968 pocket part, p.5) and that, for constitutional reasons, it is beyond the authority of Congress to establish such a royalty in legislation settling the Native claims.
Our views were set forth in detail in the memorandum we filed with the Committee on September 11 (hereinafter referred to as "AFN Memorandum"), entitled "Memorandum on Behalf of the Alaska Federation of Natives Concerning the Powers Reserved by congress (and Disclaimed by the State of Alaska) under Section 4 of the Alaska Statehood Act to Provide for an Overriding Royalty for, and Other Land Rights in, the Natives of Alaska." The AFN Memorandum demonstrates clearly that by section 4 of the Statehood Act the congress has retained full power, authority and jurisdiction:
1. To provide for the reservation and transfer to the Natives of public lands in the State of Alaska, whether or not such lands have been selected by the State under section 6 of the Statehood Act and whether or not the State’s selections have been tentatively approved by the Secretary of the Interior;
2. To reserve a 2-percent overriding royalty from revenues received from the disposition of surface and mineral resources of public lands in the State of Alaska, whether or not such lands have been selected by the State under section 6 of the Statehood Act, and whether or not the State's selections have been tentatively approved by the Secretary of the Interior:
3. To reserve an overriding royalty in favor of the Natives of Alaska from revenues received from the disposition of surface and mineral resources of lands of the United States retained in Federal ownership.
At the outset, we note that much of the argument in the State Brief is devoted to issues that are not involved.
The Alaska Federation of Natives does not suggest that either the State of Alaska or the United States raise its royalty rates. Under the AFN proposal, the Natives’ overriding royalty would come out of the proceeds received by the lessor, be it the United States or the State of Alaska, without affecting the amount of the royalties, bonuses, rentals, or other payments required of the lessees. See AFN memorandum, page 1, footnote 1.
The discussion of the meaning of the term "overriding royalty" (State Brief, pp. 2-3) and the argument that Congress lacks authority to require either the State of Alaska or the United States to increase royalties under existing leases (State Brief, pp. 6, 8-9) may, therefore, be put aside as not relevant to any issue before the Congress.1
Likewise unrelated to the real issue are the abstract legal propositions found at pages 4-8 of the State Brief.
We do not quarrel with the abstract proposition that Congress lacks authority to amend State legislation and State contracts on matters within the province of State law. Nor do we dispute the abstract argument that States have authority to regulate internal matters if Congress has not been granted such authority by the Constitution. And, of course, no one quarrels with the general statement that royalty legislation as to State leases is a matter within the State's jurisdiction, whether the royalty be viewed as a conservation measure or as an exercise of State taxing authority.
These points simply have no relevancy here. Therefore, the first 10 pages of the State Brief do not come to grips with the real issue. The only legal issue presented is the meaning of section 4 of the Statehood Act. For if the Congress has preserved the status quo with respect to the Natives' aboriginal claims, if indeed lands which the Natives claim by reason of aboriginal use and occupancy "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"—as section 4 mandates in so many words—then Congress may provide for an overriding royalty for the Natives. In so doing it would invade no rights of the State of Alaska for the simple reason that Congress would be legislating on a matter over which Alaska has no jurisdiction. If Congress now chooses, as we think it should, to exercise powers over Federal lands in Alaska which it expressly reserved in the Statehood Act, it can hardly be said to be acting in conflict with that Act. This is all that is involved and when examined in true perspective the Attorney General’s thesis vanishes.
Three fundamental misconceptions pervade the Attorney General's discussion of the Statehood Act, found at pages 10-16 of his letter.
First, there is the erroneous assumption that a royalty as proposed by AFN would be in direct conflict with the Statehood Act.
Second, there is the unsupported and unsupportable assertion that the Statehood Act constitutes, in its entirety, a compact in the nature of a contract between the United States and the State which is immutable without action by both.
Third is the erroneous contention that the disclaimer clause of section 4 of the Statehood Act preserves only whatever rights the Alaska Natives might otherwise have to monetary compensation from the United States—a remedy which is nonexistent in the absence of additional legislation, legislation which would not affect Alaska and which Congress would be as free to enact were section 4 to have been omitted from the Statehood Act as it is with section 4 included.
Each of these propositions was examined in detail in the AFN Memorandum and was shown to be erroneous. Without replowing that ground, it is appropriate to make some limited comments regarding pages 10-16 of the State Brief lest the real issue be submerged by the iteration and reiteration of premises that have no relevancy.
To begin with, the second paragraph on page 10 refers to the "compact provisions" of the Statehood Act but immediately slips back into the erroneous generalization that all of the Statehood Act is a compact or contract. The Statehood Act itself is quite specific as to what the "compact" between Alaska and the United States comprehends. It is, as section 4 states, the disclaimer by the State and its people of any right or title to the lands which may be claimed by the Natives. And even if it be assumed, contrary to the fact, that all of the Statehood Act is a compact or contract, it would avail Alaska nothing because by section 4 the United States retained its options. A party to a contract who exercises a unilateral power retained or conferred thereon is not estopped because the other partly refuses to give an unnecessary assent.
In respect of the arguments designated "first, Second, Third, Fourth and Fifth" at pages 10-15 of the State Brief, we make the comments which follow:
First. Alaska can take no comfort from Beecher v. Wetherby, 95 U.S. (5 Otto) 517, 24 L.ed. 440 (1877). The case is, in fact, authority for the principle that grants of land to States are not excepted from the general rule that Indian rights in granted lands continue until the Indian title is extinguished by the United States. The State of Wisconsin, said the court in Beecher, took the granted lands subject to the claims of the Indians. Until the United States extinguished the Indian's title, the State held only the bare legal title; not the beneficial ownership. Moreover, unlike the Alaska Statehood Act, the Wisconsin Admission Act (9 Stat. 233) contains neither a disclaimer clause nor an express reservation by Congress of its continuing authority over Indian lands. Beecher is discussed in detail in the AFN Memorandum, pp. 10-11.
Second. None of the cases cited are in point. No action by the State of Alaska is necessary. AFN asks only that the Congress act within the scope of the authority it retained by section 4 of the Statehood Act. As for the Congress’ power to amend section 28 of the Statehood Act, see the AFN Memorandum, pp. 30-38.
Third. Again the argument is based upon the erroneous assumption that the Congress is powerless to so act without Alaska's consent. Contrary to the assertion in the State Brief, section 8(b) of the Statehood Act did not call for the approval by the Alaskan electorate of the entire Statehood Act. Perhaps it is this misreading of section 8(b) that has led to the erroneous conclusion that Congress divested itself of its authority to legislate concerning Native claims in the case of State selected but unpatented lands.
Section 8(b) of the Statehood Act called for a vote of the people of Alaska on the acceptance or rejection of three specific propositions and statehood was made contingent upon an affirmative vote on each.
The first of these was whether Alaska -should be admitted to the Union as a State. The second was acceptance of the boundaries of the State as prescribed in the Statehood Act.
The third proposition upon which the people voted, and this is the only proposition relevant to the AFN proposal, was whether to consent to all provisions of the Statehood Act "reserving rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of land or other property" made to the State of Alaska. These obviously refer to the disclaimer and to the rights reserved by the United States in section 4 and to the limitations attending the grants of real and personal property made by section 6.
It is impossible to understand how the third proposition, which is a promise by the State of Alaska to be bound by section 4 and to accept the limitations laid down in section 6, can be twisted into a surrender by Congress of legislative authority over Federal revenues or over property claimed by the Natives. See AFN Memorandum, pp. 355-37.
Fourth. We are at a complete loss to understand the basis upon which the State Brief reached the conclusion that reliance on the supremacy clause of the Constitution suggest that the United States "may be about to enter into a treaty with the Alaska Natives." Here again the error is in failing to recognize that by the Statehood Act Congress kept the door open to granting interests in land, including a royalty, to the Natives.
Nor have we even remotely suggested that "Federal Indian Law" is outside the bounds of the Constitution of the United States. What we did and do say, and have clearly demonstrated in the AFN Memorandum, is that the authority of Congress to reserve rights, including royalty rights, for the Natives springs from the plenary authority of Congress over Indian affairs and over public lands and the public funds, and that such authority, which unquestionably would have existed had Alaska remained a territory, was not diminished by the Statehood Act. No one, least of all AFN, is suggesting that the plenary authority of Congress over Indian affairs gives Congress the right to impair civil or other personal rights of the Natives contrary to the bill of rights or any other protections afforded by the Constitution against actions by the Federal Government. It is this principle with which the cited quotation from Federal Indian Law is concerned.
Fifth. Only at this point does the State Brief reach the real issue—the construction of section 4 of the Statehood Act. Here it does no more than rely on Mr. Justice Frankfurter’s dictum in Kake v. Egan, 369 U.S. 60 (1962) at 66. That this dictum is not to be taken as a holding that Congress' powers are limited to monetary compensation out of the Federal Treasury is shown by the analysis of section 4 of the Statehood Act ad its legislative history in Part III of the AFN Memorandum and by the Appendix thereto.
Only in its first proviso is section 4 concerned with Native claims as against the United States. But in addition to and preceding the proviso in section 4 are (a) the State’s disclaimer of any interest in lands claimed by the Natives, and (b) the reservation by Congress of jurisdiction over lands claimed by the Natives until disposed of under its authority except as Congress might thereafter prescribe. These are independent of the proviso. Yet to argue, as the State Brief argues, that section 4 preserves only the status quo with respect to the Natives’ claim against the United States is to write both of these provisions out of the Act. It would have the proviso swallow the rest of section 4.
At bottom, Alaska argues that for Congress to provide for the Natives by way of a royalty is to invade her sovereignty notwithstanding the disclaimer clause of section 4, a disclaimer solemnly ratified by vote of her people. The Supreme Court, a century ago, rejected a similar contention:
There can be no question of state sovereignty in the case, as Kansas accepted her admission into the family of States on condition that the Indian rights should remain unimpaired and the General Government at liberty to make any regulation respecting them, their lands, property, or other rights, which it would have been competent to make if Kansas had not been admitted into the Union. The Kansas Indians, 72 U.S. 737, 18 L.ed. 667, 672 (1867).
As it was with Johnson County, Kansas, in 1867, so must it be with the State of Alaska in 1969.
Paul Weiss, Goldberg, Rifkind, Wharton & Garrison; Wyman, Bautzer, Finell, Rothman & Kuchel; Strasser, Spiegelberg, Fried, Frank & Kampelman; Attorneys for The Alaska Federation of Natives.
1 It is, therefore, not necessary to demonstrate, although we are prepared to do so, that the contentions at pages 8 and 9 of the State Brief are erroneous as a matter of law. These are to the effect that if Congress were to provide a higher royalty for federal oil leases in Alaska than for leases of federal lands elsewhere in the United States, such legislation would violate the equal footing doctrine and the equal protection and due process clauses of the constitution of the United States.
However, we cannot refrain, in passing, from noting the devastating effect the argument, if valid, would have upon the State of Alaska. If indeed Congress were powerless to require higher royalties on federal leases in Alaska than elsewhere because that would discriminate against Alaska as compared with her sister states, would it not follow that section 28 of the Statehood Act is itself unconstitutional on the same ground because it gives Alaska 90 percent of the Federal Government’s leasing revenues while all other states in which federal lands are leased must be content with a mere 37½ percent? And to carry the point a step further, would not section 6(b) of the Statehood Act, granting the state selection rights to 102,000,000 acres of land, also go down the drain because Congress did not choose to bestow so generous a bounty on any other state?
Source: Alaska Native Land Claims Part II, "Hearings before the Subcommittee on Indian Affairs of the Committee on Interior and Insular Affairs, House of Representatives, Ninety-first Congress First Session on H.R. 13142, H.R. 10193, and H.R. 14212, Bills to Provide for the Settlement of Certain Land Claims of Alaska Natives, and for Other Purposes. U.S. Government Printing Office, 1970.