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 JOHN BORBRIDGE, PRESIDENT AND GENERAL MANAGER, CENTRAL COUNCIL OF TLINGIT INDIANS OF ALASKA (written)
I am John Borbridge, Jr., a Tlingit Indian and an Alaskan Native. I am Vice President of the Alaska Federation of Natives of the Central Council of the Tlingit and Haida Indians of Alaska. On behalf of the Natives of Alaska, I want to thank the Chairman and members of this Committee for coming to Alaska to hold these hearings and for the interest in the settlement of the rights of the Alaska Natives manifested by your presence here. I am also grateful for this opportunity to assist with the presentation of the Natives' case for the settlement proposal we have recommended to the Congress which has been introduced in the House of Representatives by Congressman Pollack and designated H.R. 14212.
I would like to make one point emphatically at the threshold. The substance of all the important provisions of H.R. 14212 was conceived by the elected representatives of the Native people of Alaska assembled as the Alaska Federation of Natives. It was not suggested, let alone dictated, by any person or persons not members of the Federation. The major provisions of this bill, those relating to compensation as well as to other subjects, reflect decisions taken by the Natives and the terms of the settlement they determined to recommend to the Congress.
Contrary to what is now being heard from some quarters, the provisions of H.R. 14212 reflect no essential change from positions staked out earlier by the Natives. I submit that an objective review of the positions taken during the period this legislation has been under consideration by the Natives and by representatives of the State and the Executive Branch of the Federal Government, memorialized in records of hearings before the Interior Committees of both Houses of Congress and elsewhere, will disclose that the positions of the Natives have remained remarkably constant while those of others have been characterized by unexplained reversals and sudden flip-flops. For example, the Governor of Alaska testified in April of this year that: "The State endorses the percentage sharing principles of the bill in that it enables the Alaska Natives to participate in the progress of Alaska." In August, while he indicated that his Attorney General had some reservations about its legality, the Governor again reiterated that, in principle, he endorsed revenue sharing with the Natives. Now I am informed he is adamantly opposed to revenue sharing in any form and that he has stated that settlement of the Native rights is strictly a Federal responsibility.
Because I understand that others will outline, analyze, and compare the bill which the Natives have sponsored and the others proposals before the Congress, I would like, if it please the Committee, to concisely set forth certain of the premises upon which the provisions of the Native bill, H.R. 14212, are rested.
The Natives of Alaska presently hold aboriginal title to most of the land in the State.
While this title can be extinguished by Congress without necessarily subjecting the United States to liability to pay compensation, it has been the policy of this Nation, since before the adoption of the Constitution, not to extinguish such title except upon payment of full compensation to the aboriginal owners.
With the qualification mentioned above, the law is that aboriginal title invests its holders with as complete beneficial rights in the land and all of its resources as fee simple title, which rights, until extinguished by the united States, are enforceable against all third parties, including states.
Congress has been at pains to protect the Alaska Natives by providing in each important piece of legislation relating to Alaska, commencing in 1884 and including the Statehood Act, that the Natives shall not be disturbed in their use and occupancy of the lands claimed by them and by making it clear that the determination of Native rights was reserved for future legislation.
As matters stand, it is probably that anyone, including the State, who receives paper title to land historically used and occupied by the Natives will be found to have taken a naked legal title subject to the Natives' beneficial rights.
Accepting that, largely because of the needs of the State, the time has come to settle and determine the Native rights, it is preferable that they be resolved by legislation rather than by litigation.
Adherence to the policy that has always guided the Nation when acquiring Native lands requires that the Natives of Alaska be compensated for the full and fair present market value of all lands with respect to which it is determined that their aboriginal title should now be extinguished.
As legislative mechanisms are not designed to make precise determinations of land values, the amount of compensation to be awarded by legislation of necessity will have to be determined by compromise, but this determination should be made in light of the consistent policy of the nation to payful market value.
In the past, the instrument most frequently used to acquire Native land was the treaty or other negotiated agreement. Such agreements did not always result in the Natives receiving full compensation for the lands they surrendered to the Nation. When this became manifest the Government provided forums wherein Native groups could sue for the difference.
But in those instances when the Government failed initially to deal justly with Native groups the remedies afterwards provided proved to be something less than satisfactory. Over half a century of enervating litigation resulted and, what was worse, an even longer period during which attempts to initiate progressive programs for the advancement of the Native people were frustrated by the poisons of suspicion and mistrust which the earlier inequities had injected into relations between them and the Government.
There can be no excuse for repeating the mistakes of the past in settling the aboriginal rights of the Alaska Natives.
Because the party principally interested at this time in having Native titles extinguished is the State of Alaska, because it will be the principal beneficiary of the settlement of the Natives' rights, and because it has been generously treated by the Nation, justice and equity require that the State should contribute substantially to the settlement.
The best method of insuring that the Natives will be fairly compensated for the land they surrender, and of providing for contribution by the State to the settlement, is to accord the Natives a continuing interest in the proceeds of the thing they are called upon to convey - the land itself. Such an interest will give the Natives a continuing identification with the land and tie the compensation they will ultimately receive to its developing value.
The Natives of Alaska on the whole are as capable as any group of Americans of administering their own affairs and managing their own property. The lands, funds, and other interests which they receive incident to the settlement of their aboriginal rights should be free of the demeaning and demoralizing trappings and fetters of wardship. Whatever organs or institutions are established to implement the settlement and to administer the property which the Natives receive should be largely managed by the Natives and certainly responsive to their needs as identified by them. The popular rhetoric that the Native peoples of America should be free to set their own courses and determine their own destinies should be converted immediately to fact in the case of the Natives of Alaska.
As I said, the foregoing are some of the principal premises which were in the minds of the representatives of the Natives when they determined the framework of the legislation they would recommend to the Congress. I submit they are sound and that the bill which the Natives have proposed is sound.
Substantially, the Native bill calls for three things: (1) formalization of Native title to approximately 40 million acres of land; (2) Native retention of a two percent royalty on the production of resources from all lands presently in Federal ownership; and (3) payment to the Natives of $500 million.
With respect to the land to which the Natives ask that their title be formalized, I would point out that, as they already have complete beneficial rights in it and would be entitled under the policy of the United States to its full market value if it were taken from them, they will really not be receiving anything which is not already theirs, except a firming of tenure.
Respecting the compensatory provisions - the money and the royalty - I would point out that what they would accord is in exchange for something over 300 million acres of land. No one knows what the present fair market value of these 300 million acres is but, I submit, that it has to be something considerably in excess of $500 million and a two percent royalty interest in the resources.
More keenly perhaps than any other group of Alaskans the Natives appreciate that their destiny and that of the State are bound together by the tightest of ties. We are agreed that we will now surrender our historic title to most of the land in Alaska in order to accommodate the interests of the State. We seek to retain some of our land and to be justly compensated for that we are called upon to surrender. We have proposed a settlement to accomplish these objectives which we believe is soundly grounded and eminently fair and reasonable. Not principally as Natives, but as Americans and Alaskans, we have recommended our settlement bill to the Congress and urge its enactment because we are convinced that the best hopes for the future of Alaska and the nation will be served thereby.
The Nation is now presented with what will probably be its last opportunity to deal justly with a Native people who possess unextinguished aboriginal title to a vast land. It would be difficult to exaggerate the importance of the outcome to the Natives, the State, and the Nation. But as certainly as history repeats itself the practice of inequity or parsimony at this time will cause disruptions in the future the cost of which will almost certainly far exceed the cost of doing justice now.
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.