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.
STATEMENT OF DR. FREDERICK P. MCGINNIS, PRESIDENT, ALASKA METHODIST UNIVERSITY (written)
"Moral Basis of Alaska Native Land Claims"
Comments and Observations
"To those people in the huts and villages of half the globe struggling to break the bonds of mass misery, we pledge our best efforts to help them help themselves, for whatever period is required – not because the Communists may be doing it, not because we seek their votes, but because it is right. If the free society cannot help the many who are poor, it cannot save the few who are rich." John F. Kennedy: Inaugural Address
The Natives of Alaska obviously have a claim, a special claim, an extensive claim, a defensible claim. It must also be a reasonable claim.
The Congress of the United States has a great interest in, and has the primary responsibility for, any settlement of the Native land claims. The members are men of ability, goodwill and, in the main, have a deep sense of fairness and justice. It is reasonable to assume that they have a serious determination to arrive at an equitable settlement. Hearings on S. 2906 evidenced a growing and responsible national interest.
The State of Alaska has an enormous stake in the land claims question. With Statehood, the Congress provided the State 103,000,000 acres of land. The Congress cannot ignore the provisions of the Statehood Act which promises the State certain selection rights. However, it cannot and should not be argued that the State of Alaska is precluded from considering the native land claims within its concern and partial responsibility. In the selections process, the decisions on land use following such selection, and additional legislation, the State can assist in an equitable settlement. It is possible for the congressional obligation, the State selection rights, and the Native land claims to find mutual accommodations in arriving at an equitable resolution to the settlement.
The public interest – national, international, and state – must be kept in perspective in any settlement of the land claims. Decisions should not be made which will affect adversely one group to a serious or undue degree while assisting another group. The needs and rights of all will need to be considered.
Evidence of mans presence in Alaska dates from 2,340 B.C. or over 4300 years ago. Some dissenters claim that man first occupied the New World 40,000 years ago. Most archeologists, geologists, and paleontologists do not accept such an early date at the present time. A few new discoveries may change the picture and establish it beyond all reasonable doubt.(1)
The subsistence pattern of the Native Alaskans has always been tied into the land and the sea. With a vast difference in topography, soils, climate, fauna, and flora, the one unchanging important fact was that subsistence was tied into the land. In fact, these factors determined the geographical distributions. These patterns of geographic distributions have been classified and documented by eminent scholars in terms of the dominance in the diet of fish, game, wild plants, or cultivated plants, all of which played important roles. The land was sometimes generous and in other years hostile, so that great famines would result in widespread starvation.
"The first Indian immigrants to the New World knew nothing of farming and could not have raised crops in the Arctic climate of Siberia and Alaska if they had wanted to. These people lived solely on the wild animals, fish, and wild plants that nature provided. The abundance of spear points in the early archeological levels…is mute but incontestable evidence that the earliest immigrants to North America were hunters."(2)
In over half the area of aboriginal North America at European contact, the Indian did not farm but lived exclusively by hunting, fishing, or gathering wild plants. Complete inventories of all species of animals, fishes, and plants consumed as food by the red men of North America have never been compiled, but they would probably total more than 2,000 species. Hunting was the dominant means of obtaining a livelihood. The hunting regions cover nearly all of Canada and Alaska. The never-ending cyclical round from one food source to another, or at least seasonal shifts of location, was evidently carried on by small groups, whose social-political organizations would have been, of necessity, simple.
The situation in which the Alaska Native finds himself today is exceedingly precarious. In the main, he is a marginal man in terms of economy. His old way of life is gone for the most part. It disappeared by the intrusions of the white man and the direct and indirect influences of the white man by improved methods of transportation, by communications, and by forms of exploitation.
Whatever extensive claim settlements may be made by legislation, they will be only a beginning in coping with the enormous problems facing the Natives in the long run. Inherent in the Native land claims question is the future course of 60,000 to 80,000 American citizens. They have been neglected, forgotten, exploited, misunderstood, and misused. Financial and land settlements, however generous, will do no more than unlock a door. The economic, educational, and social developments are far harder problems to face and burdens to bear. It is morally and ethically unthinkable that another 200 or more years must go by, or even adequate, and responsible action to make possible the new birth of hope the Alaskan natives so much deserve.
The fact that adequate solutions have not been found to these important land claims problems reflects something deeper than social lethargy and legislative neglect. It is evident that these have been present for over a century of U.S. ownership and a decade of Alaska statehood. These are symptoms of deeper maladies.
What, on the part of too many, ultimately and fundamentally involved, is:
Subconscious and/or conscious racial discrimination
We rationalize it by words and actions:
"These 50,000 Indians, Aleuts, and Eskimos are so different. I really don’t understand them, their history or their ways. If I just knew them better surely I could become involved enough to give them a hand. Since I don’t, they must find some way to deal with "their" problems."
Self-interest mixed with dimensions of fear
We rationalize it by words and actions:
"If we get too expansive in our willingness to grant a generous land and/or cash settlement, it somehow will diminish what is coming to me. Let us await absolute certainty that "an equitable settlement" will provide for "all the people." Let us brush aside over 226 years of exploitation by the Russians and the Americans and keep waiting until that legislation is introduced which will "protect" all the interests."
Lack of vision to help create something truly new
We rationalize it by words and actions:
"These natives have lived so far away and under such special conditions, I suppose that is all they know or all they deserve or all they are apt to want. Even if they received extensive settlements of land and money, they would probably not know how to use it well. Until they do, we shouldn’t be in too much of a hurry to place in their hands resources genuinely generous and sufficient for them to make bold new leaps into the advancement cherished by modern man. They need to be protected from themselves."
Absence of a true aim or goal in national or state purpose.
We rationalize it by words and actions:
"The developmental problems of the state and nation are so vast, the war so immediate and expensive, the industrial development so desirable, the urban crisis so explosive, the poverty problem so widespread…we just haven’t yet reached the agenda item of giving the Natives their deserved options of whether or not to enter fully into American drama of equal citizens. We would like them to be able to hammer out their own future, in their ways, and continue to make their own decisions. So you see this spares us of any well-defined goal or aim as to where or whether they fit in. The fact that land title, revenue, and resources have not been allowed them by our inaction, we dismiss by indicating that from time to time efforts have been made."
We do not often or consistently associate these four foregoing considerations with ethical requirements for personal conduct or government policy. A careful review might reveal that moral considerations are central to them all.
Each society has its own scale of values. Those values give it unity, a sense of direction. They are the cohesive force which holds it together. Before the Russians or the Americans reached Alaska, the Natives had their own scale of values which gave directions to all they did. Later the white man came with his own values and ideas.
It is a tragic mistake, and morally questionable, for the white man to draw conclusions about Native land claim settlements wholly within the context of the white man’s scale of values concerning land. It should be remembered that the white man was a latecomer. There are ethical and moral implications of moving in on property and placing the occupant and user in the position of fighting for his property rights.
It is easy to assign to the Alaskan Native the same ideas and policies on property rights as held in most American communities. The respective ideas and values were quite different. Great variations were present among different Alaskan Native groups. Examples:
There could be as many kinds of joint ownership of property as there are kinds of groupings of human beings;
Property could be "owned" by a single individual, two or more individuals, an entire community, or a tribal group;
Real estate could be owned or used by a kin group and might be inherited by succeeding generations of kindred without being disposable by sale or barter;
Ownership could be nominal (in name or speech) or use ownership (usufruct);
Land was often said to belong to the tribe; yet in practice it might be used exclusively by a single family or lineage segment;
Land tenure depended in part upon use made of it. Different uses of land were shared, inherited, or transferred in different ways;
Any central Eskimo could hunt sea or land animals anywhere he chose. The Eskimos had no real political organization and no conception of boundaries between "tribes". When fights developed between Eskimo and Indian groups, they were over "products" at hand and never over boundaries;
In the western Arctic, the most productive places for setting salmon nets were regarded as personal property and handed down from father to son;
In the Mackenzie Sub-Arctic, most territorial rights were controlled by loose and fluid bands rather than by individuals or families;
Dwellings often would be portable where land was considered owned tribally or internationally (open to all user groups) and would be moved from place to place in keeping with nomadic habits of some groups;
An important theme of Eskimo culture was "freedom" – an individual was free to move about as he wished, to engage in whatever economic activity he wished, to associate himself with any group to which he might have the remotest tie of kinship. Mobility was characteristic.
When one considers the structure of life of the Alaskan Native historically, it is not surprising that political organization and resulting rules were not important apart from force of law of kinship groups. It was not deemed necessary to build fences around property claimed, to survey the boundaries, to have a deed prepared, or to record the deed in some recorder’s or magistrate’s office. Had their need of the day demanded such, they would certainly have provided permanent safeguards and protections.
As a practical matter, this was not an open option. Until relatively recently, there were no papers for deeds or maps, no surveys possible, no legal descriptions available, and no organized government offices to record and protect records.
One can question the fairness or ethics of applying contemporary "Western" standards of land ownership, acquisition, or tenure to the Alaskan Native whose history and background and practices have been conditioned more from the Orient than from the Occident. However, through no fault or request of their own, they are now thrust into Western culture. In this culture of "money economy" and "land holdings", with resulting relations to human development and cultural growth, generous equitable, and timely settlement of land claims is a minimal ethical requirement.
There are those who hold that "absolute ethical norms" exist and that ethical propositions are unquestionably and eternally true and neither permit nor warrant any revision. This concept of "absolute" ethics is to be found in authoritarian systems. It follows logically from the premise that the criterion of validity is the unquestionable superior and omniscient power of the authority. Under this claim the authority cannot err and that its commands and prohibitions are eternally true. It is doubtful that the facts in the presently considered native land claims would merit such "absolute ethical" grounding.
There are certain situations which are inherently insoluble and do not permit any choice which can be considered "the" right choice. When the "state" is in conflict with the "individual" or special group, proposed solutions may neither injure the state or injure the individual. In countless cases it is extremely difficult, if not impossible, to decide by which of the alternative courses the least wrong is likely to be done. In some cases the integrity of the state as well as the integrity of the individual or group is at issue. The social order, at times, presents individuals and groups with such alternatives that whatever is done is right and wrong at the same time. If a problem is inherently insoluble it is impossible to make a choice which is valid. For example, at times individuals are forced to make decisions which either violate integrity or result in loss of life. There is no good solution to that problem. Government, federal and state, can be caught in similar ethical traps.
An action or decision of a government on an individual may be said to be "ethical" if it contributes to the growth and unfolding of man; if it also is capable of being universalized without being self-destructive or self-defeating. An action may be said to be socially ethical if it makes for the functioning and survival of a specific kind of society and of the people living in it.
Eric Fromm puts it this way:
"The ethical systems of all great cultures show an amazing similarity in what is considered necessary for the development of man, of norms which follow from the nature of man and the conditions necessary for his growth."(3)
An ethical solution to the Alaska Native land claims question is more important than a popular or harmonious solution. The deep contradictions and the difficult complexities of the question should never be glossed over. (4) They should be faced for the sharp exercise in logical, legal, political and economic thought demanded. Especially is this true concerning "compensibility related to legislative direction". (5) In this process the voice of human conscience should play an active and contributing part. This is necessary to determine whether a given settlement is good or bad for the Alaska Native, whether or not it is good or bad for Alaska and the nation generally at a special period of time.
The ethical requirements of families, nations, individuals and states demand special actions at specific times to meet emergencies or pressing and well-established needs. The rationale for such special actions is defended solely on the special needs and requirements of the benefited individual group or state. For example:
When Statehood was voted for Alaska the Federal government granted Alaska 103,000,000 acres of land to be selected for ownership, use, sale or for other purposes as the State thought best. Justice or equity did not demand that other states of the union be given an equal amount of land at that same time. Other states may have been given more or less land at the time of their admission to the union. The special, unusual needs of an emerging state were sufficient to justify what might be considered unequal treatment at a point in time to deal with a special problem.
When the earthquake hit Anchorage, an other Alaskan cities, and the flood hit Fairbanks, the ethical requirements of response to the human needs were such as to by-pass the usual practices and customs to provide remedies considered adequate to those communities at a special time. The whole question of unequal assistance was not relevant to the special needs at hand.
Within a family there are times when the special needs of a single member may far out-distance the needs of all other members. Parents and other family members do not hesitate to base decisions related to the required assistance on grounds other than whether or not the amount of aid required may be unequal to resources at that special time available to other family members.
The present status of the Alaska Native is such as to merit unusual, unequal, bold and generous settlement of the Native land claims. The continuous, residual, accumulated range of emergencies endured by the Alaska Native should be approached with at least the conscience and consideration given to the special circumstances cited above. A sense of justice would require such attention.
The issue will be whether or not the social and political orders surrounding the Alaska natives are willing for decisions to be made at a specific point in time and at a particular place in geography which will allow the Alaska Native groups to come into the full human development desirable for all the members.
The United States is not only the most powerful of the democratic nations, it is one where religious, ethnic and racial differences are presented most dramatically and where the tensions induced by democracy’s encounter with the spread of communism have been most clearly defined. Our laws deserve unusual notice because they enunciate our society.
In our democracy not only do the just powers of government derive from the consent of the governed; the governed and their consent are drawn upon to warrant the just applications and exercises of the powers. By these terms, law, government and official compulsion are provided with their moral basis. The moral authority of representative government rest upon two strong pillars: freedom of inquiry, debate and discussion make up one pillar. Justice of administration is the other.
The political status based upon newfound "strength in unity", of the Alaska Native, is something new and young on the Alaskan scene. For the first time in over four thousand years of Alaska occupancy, his will and intelligence are joining to change the dream of a just society into practical existence. Now he is discovering his capacities and flexing his desires. His work, toil and patience to date are accumulating power and momentum. They should. They deserve assistance from diverse groups.
Of Alaska’s less than 290,000 total population the proposed enrollment of Alaska Natives is estimated from 53,000 to 80,000. With Alaska’s growing strength and power as a state the moral considerations will intrude more and more:
There is no true strength except in justice;
There is no true riches except in compassion;
There is no true security except in genuine freedom and peace
grounded in the equality of access to opportunity for all men.
(Editorial Note: Footnotes for this piece have been placed at the very end of this document.)
Footnotes from the Written Statement of Dr. Frederick P McGinnis
President, Alaska Methodist University
"Moral Basis Of Alaska Native Land Claims"
Comments and Observations
(Pages 52 to 58)
1. Harold E. Driver, Indians of North America (Chicago, The University of Chicago Press, 1961), p. 2.
2. Ibid., p. 57.
3. Eric Fromm, Man For Himself (Greenwich, Connecticut, Fawcett, 1947), p. 241.
4. For the complexities of the legal decisions related to Native Land Claims see:
(a) Native Land Claims In Alaska by W. C. Arnold. Listed therein are 42 pages of legal decisions.
(b) Hearings: Alaska Native Land Claims: On S. 2906. Hearings before the Committee on Interior and Insular Affairs, United States Senate, Ninetieth Congress, Second Session: February 8-10, 1968.
(c) S. 2906: Senate Bill of U.S. Senate, 1968.
(d) Committee Substitute for HB 672: State of Alaska 1968 Session.
(e) Federal Indian Law (Washington, D.C., U.S. Government Printing Office, 1958), pp. 942-964.
5. Pending problems not treated within the scope of these observations and comments include:
(a) New federal legislation; same as or similar to S. 2906, presumably to be introduced in 1969: Acreage settlement, money settlement, royalty settlement proposals; administrative and other details of the proposed legislation.
(b) State of Alaska legislation: relation to the provision of the "land freese" and lapse of certain provisions in CSHB672, restrictions, other problems of correlation with federal legislation.
(c) Possible amendments to either federal or state legislation which would make the legislation more acceptable to more people. Included would be provisions for "Right of Ways" for public purposes and similar provisions in federal land patented to individuals or groups.
(d) Consideration of "Unearned Increment" relations, differential in values of acres transferred and similar possible equity considerations.
(e) The need to pay attention to "other forms of property" in light of actual agricultural value of much of Alaska land and reduced hunting values based on the diminished game, etc.
(f) Details of proposed legislation, actual or to be introduced, with related moral considerations of specific proposed provisions.
(g) Historic "Extinguishment" of Indian Land Claims in other regions of the United States and concept of "Equal protection of the laws" philosophy as related to Alaska Indian Claims.
(h) The technical problem of "Recognition" of valid claims as pre-requisite for legislative action.
Each of these items deserves a full study of its own.
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.