THE ALASKAN NATIVES' fight for land and compensation is hardly a great popular uprising. Although it might be hard to find natives who didn't know of the land-claims fight, and perhaps even to find natives who didn't hope somehow to benefit from it, the fight itself is being carried on by a small group. Even those natives in the villages who are interested in land claims receive information only sporadically and assume that the Alaska Federation of Natives is taking care of things. They view the efforts of the Federation from a distance, as they might view the efforts of the state or national government. Emil Notti, president of the Federation, acknowledges the villagers' passivity and their sketchy information but says that the situation can't be helped. Communications in Alaska aren't good, keeping in close touch with the scattered native population would be difficult and expensive, and the Federation has limited resources. "It costs $30,000 to send someone through all the villages one time," Notti says. "We've decided to concentrate our money and effort outside."
There's no reason to believe that the "average" native is more remote from the Federation than the average citizen of almost any country in the world is from his own government. However, governments have territories and power, and, in one way or another, hold their citizens very much as subjects. The Alaska Federation of Natives has no power and no territory, so verbal communication is the only real link between the villagers and the Federation leaders. To some Alaskan liberals, a surprising number of whom hold the Federation in low esteem, the weakness of that link makes the Federation's claim to represent the native people absurd at best. "The leaders," they say, "don't represent anyone."
But the representativeness of the leaders is almost beside the point. Congress, which has chosen to lump together as "natives" all the Alaskan ethnic groups despite their traditional mutual hostilities, has also chosen to regard the Federation as the natives' bargaining agent. And, in fact, however short of ideal the Federation's relationship with its constituents may be, there's no other organization to consider.
Some people who have been close to the Federation say that its leaders are ambitious. "Everyone is running for governor," I was told at the beginning of 1970. Even people who are sympathetic to the Federation and respect its leaders tend to think that the leaders are bent on doing well by doing good. Still, there's no reason to suspect that any of the AFN leaders are trying to advance themselves at the expense of the native population, or that the interested village native's hopes for a land-claims settlement differ radically from their own.
Both the younger leaders and the older village natives resent the prospect and the established fact of white civilization's taking over their lands. The traditional "reverence for the land" is strongest in the old village people. They have always lived with the land, hunted over it, known that they inherited it from their parents and grandparents; the prospect of outsiders' taking it over seems outrageous. Most of the younger leaders do not have this strong traditional bond with the land. They have moved out of the traditional culture, have grown familiar with the white man's cities and the white man's politics. Nevertheless, they believe the land is theirs, know it's valuable, and resent any attempt to take it away. The older village people tend to be incredulous that any outsider could and would take their land. The younger leaders are more intent on receiving some kind of compensation. Being more attuned to white society and more aware of the need to succeed in it, they place much more importance on the cash and royalties they have asked for as part of a settlement. Still, they are adamant about land. "At every board meeting, some lawyer says we should have a minimum figure for the amount of land we're willing to settle for," says Emil Notti. "He says it would make it easier for the people making up the bill if they knew the limits within which they had to work. So we go around the table. The first man says, 'Forty million acres, that's my minimum.' The second man says, 'Forty million acres.' That's the way it goes, all the way around."
Some of the natives' most influential white well-wishers wish they would think less about the land and more about the money. "Some of the older natives are hung up on land," says Joseph Fitzgerald. "They don't need much land. The important thing is to pump money in. If the capital isn't squandered, just a large cash payment will give them income in perpetuity." Senator Jackson, who is both chairman of the key Congressional committee and the natives' chief friend at court, substantially agrees. The officials of the Federation do not. When it's suggested that the possession of a huge amount of unproductive land might turn out to be less a blessing than a handicap, Emil Notti gets indignant. If land isn't a liability for white entrepreneurs and white-owned corporations, he asks, why should it be a liability for the natives?
Native leaders and white well-wishers also differ over how best to administer the money the natives get through either a straight cash payment or royalties. The cash settlement named in both the Federation plan and the government plan is $500 million, to be paid over a period of nine years in the first plan, twenty years in the second. Royalties, if any are granted, could total at least as much again. So the question is how to distribute and manage a sum that may be as large as a billion dollars. A lot of people in the villages would like the money to be distributed directly to the villages and to have each village manage its own share as it pleases. The Federation hasn't pressed for this solution. For one thing, even some people in the villages think that money distributed so widely to such small and unsophisticated places would find its way into too many of the wrong pockets. Jack Ahgook, the Federation delegate in Anaktuvuk Pass, thinks village corporations are a bad idea because "some people just want to get their hands on the money." Also, if the money is distributed among the villages, there may not be enough in any one place to finance any major economic development. Besides, no one seriously believes that Congress would hand over a billion dollars to a collection of ragged villages.
The Federation wants the money to be administered through twelve regional corporations, which the leaders feel would be more practical than village corporations and would respond more readily to the real needs of individual villages and villagers. A single statewide corporation they feel would be too bureaucratic, too remote, too much, as one native leader said, "like a new Bureau of Indian Affairs." And they point out that, after all, the members of the Alaska Federation of Natives aren't really a single homogeneous ethnic group; they comprise a number of different ethnic groups with different cultures, different languages, different needs, and, in many cases, a history of mutual hostility. The Eskimos and Athabascans, for instance, fought each other for centuries. Even now, there is friction between ethnic groups within the Federation. It is sometimes hard to get them to agree. And some ethnic groups have been known to join forces against other groups to get their own representatives elected to office.
Most of the natives' white allies, including both Joseph Fitzgerald and Senator Jackson, don't think much of the idea of regional corporations, to say nothing of village corporations, and believe that the money should be administered by a single statewide agency. The main argument in favor of a state corporation is simply organizational efficiency. "It's hard enough to find management for one corporation," Fitzgerald says, and he insists that twelve corporations simply won't work. Senator Jackson agrees. Both men think it simply isn't likely that the natives will come up with enough good or potentially good executives to run twelve corporations well. Also, it seems probable that Congress would feel most comfortable in giving so large a sum of money to a single, highly visible, substantial-seeming group. Alaska's Governor Keith Miller, whom the natives hardly consider an ally or even a friend, does favor the idea of regional corporations. He reasons that the shorter the chain of command between the administrators and the natives, the more likely individual natives are to actually see some of the money. Most cynical observers say, very credibly, that what concerns the governor most is the prospect that a single state corporation with assets of a billion dollars would have tremendous political power and hence independence, while twelve regional corporations would be more manageable.
The Federation leaders aren't eager to compromise on regional corporations or anything else. In part, they feel that to show any willingness to compromise would weaken their bargaining positionfor just that reason, Emil Notti refuses to say how little land the natives would probably settle for. "People say we're not flexible," says Alfred Ketzler, president of the Athabascan Tanana Chiefs' Council and acting executive director of the Federation during early 1970. "They ask, what's your fall-back position? We don't have one. If we give a fall-back position, then that's what we'll get. We've already fallen back from eighty million acres to forty million. The people in the villages are pretty well set on forty million acres, $500 million, and 2 per cent. The land is the most important thing."
But what some outsiders feel is the natives' intransigence runs much deeper than tactics or the desire to drive a good bargain. Many natives seem to have invested the figures of forty million, 500 million and 2 per cent, all arrived at arbitrarily or through bargaining, with moral significance. A lobbyist at the Alaskan state legislature in Juneau told me, "The AFN has convinced itself that its proposal isn't a bargaining position but an absolute." The same man said that Willie Hensley, a state representative from Kotzebue who was then executive director of the Federation, "is less respected this year than last. He thinks his position is moral and anyone who opposes it is immoral. Therefore he tends to despise people who disagree with him."
The Federation leaders are indeed convinced that their position is morally right. The case seems very clear to them: their ancestors used and occupied the land, each ethnic group defending its territory against all invaders; when the white man came, their ancestors never formally relinquished possession; therefore, they still own the land and anyone who tries to take it without at least paying for it is trying to steal it from them. The land the natives once dominated is huge, and it contains what may be the largest oil field in the world, so they think that even a billion dollars, which comes out to less than three dollars an acre, would hardly be excessive payment. (Oil companies paid up to $28,000 an acre for land at the September, 1969, lease sale.) The natives' insistence on the morality of their position may make them difficult for some people to deal with, but it hardly seems a point against them that they are charged much more often with moral righteousness than with cynicism.
The native leaders' intransigence is fed not only by their conviction of their own moral rightness but also by a feeling that both the state of Alaska and the oil companies are actively trying to cheat them, and that within Alaska, they are under bitter and unprovoked attack. "At first we tried to speak very softly and not get anybody mad," Emil Notti says, "It didn't work. There was a backlash anyway. So I don't worry about it any more. To hell with them."
What the natives consider the main backlash occurred in the fall of 1969 and began with an editorial in the state's largest newspaper, the Anchorage Daily Times. On October 18, the same day the House Interior Committee's Subcommittee on Indian Affairs held a hearing in Anchorage on the land-claims issue, the Times ran an editorial entitled "The Goldberg Bill." The editorial said that the natives' proposed 2-per-cent royalty alone "would amount to hundreds of billions of dollars and is sufficient grounds to oppose the legislation. But that is only one of a basketful of fantastic proposals advanced to the Congress by the native association and its lawyers, headed by Arthur Goldberg of New York. . . . The total effect [of the natives' proposed bill] would be to cripple the development of Alaska for all its citizens. . . . This Goldberg Line that has been fed into the Alaska Native Federation bill is a threat to all the people of the 49th State."
At that afternoon's hearing, Representative Ed Edmondson of Oklahoma called the editorial "journalism at its lowest level" and said that "to put on [the] bill the label, 'The Goldberg Bill,' in the same editorial that makes an appeal for an end to racial animosity is not only low-level journalism, it is gutter journalism, and I think it should be deplored."
In November, a group of Anchorage businessmen made a conference call to Alaskan Senator Ted Stevens and told him in effect that if he pushed for a generous land-claims settlement in Congress, he might not be Senator much longer. State officials did nothing to discourage anti-native feelingmany people feel that they actively encouraged itand although no one burned any crosses, there was a good deal of public antagonism.
Federation leaders especially resent what they regard as the hostility of the state government. They believe that without the active encouragement of the state, public hostility might never have developed. "Hickel started the first backlash," Emil Notti says. "It was on February 7, 1967. He tied up every radio station in the state for half an hour with a speech in which he said, 'Just because somebody's grandfather chased a moose across the land doesn't mean he owns it.' " Notti feels that as governor, Hickel was devious as well as hostile. "I knew in December, 1968, that Hickel was going to be nominated for Secretary of the Interior," he says. "He wanted our support, so he called me to his house one night and said, 'We'll take care of you.' Then the state selected oil land right around native villages. That's how he took care of us. We went to Washington two weeks before his confirmation hearing and spent two weeks knocking on doors. We told people, 'He'll lift the land freeze.' Finally, the committee made him promise not to do it."
Needless to say, the Federation leaders aren't comforted by the fact that Hickel is now Secretary of the Interior. (They aren't very happy about the department over which he presides either. They think that almost everyone in the Interior Department who knew anything about their problems either left routinely when the Nixon administration came in or was actively purged. They feel that the Department doesn't understand their situation and isn't interested. They may be right. A high official in the Department told me contemptuously in January, 1970, that the discovery of oil on the North Slope had made the settlement of native land claims more difficult, because it had "given the natives visions of sugar plums.") But at least Hickel was willing to give the natives something, if not sugar plums, in order to get the land-claims issue settled. As governor, he did persuade the Alaska legislature to offer $50 million, and as Secretary of the Interior, he did get the Bureau of the Budget to approve $500 million. ("Wally Hickel doesn't give a shit about Indians," an attorney for the natives explained, "but he believes in getting a job done.")
The natives think that Hickel's successor, Keith Miller, and his administration have been stingy and hostile well beyond the bounds of intelligent self-interest. The natives say that no one in the state administration knows or cares anything about native problems, that the governor and the state have no consistent policies but are ruled by emotions and outside pressure, that they shamelessly stirred up a "white backlash" that could easily have been prevented.
Critics of the state believe it would have a better case in opposing the natives' demands if it had ever tried to do much for them in the past. But the state has done very little for the natives. In 1969, Alaska Legal Services filed suit on behalf of natives in the Fort Yukon region, who complained that the state had refused to deliver U.S. government food stamps. The state claimed that it didn't have enough money to distribute the stamps. Presumably, now that the state is oil-rich, it will be able at least to distribute stamps. But with all the talk of how to spend the oil money, the one point of substantial agreement has been that the money shouldn't be spent to help the natives.
This attitude is entirely appropriate in view of the way in which the state acquired the North Slope in the first place. "Aware that the North Slope was a potentially rich petroleum province, the state, in 1964, applied to the Federal Bureau of Land Management (BLM) for about two million acres lying along the Arctic coast between the Colville and Canning Rivers, an area which includes Prudhoe Bay," wrote Luther Carter in the October, 1969, issue of Science. "Although the region was part of the Eskimos' traditional hunting and fishing grounds, the state application said that it was free of aboriginal use and occupancy. BLM, for its part, published a legal notice in several issues of Jessen's Weekly of Fairbanks, a newspaper with a circulation of a few hundred in the villages of arctic Alaska, saying that any persons claiming land for which the state had applied should file an objection. No claimants appeared, and the land went to the state for it to dispose of as it chose, with or without regard for native interests. Commenting on this, Jane Bender, an Alaskan journalist, has suggested that, even though the procedure followed by BLM was legal, its morality was dubious. 'The burden of proof,' she wrote in an article . . . in the Anchorage Daily News, 'was placed upon people who could not be expected to untangle the legal phraseology, who might not even have seen the notice in the first place, and whose knowledge of the far-reaching consequences of that simple small-print notice might be said to be minute.' The state moved quickly to put up its North Slope land for competitive lease. . . ."
Giving natives proper notice has never been one of the state's specialties. When the state built a winter highway for hauling supplies to the North Slope, for instance, it put the road through the Brooks Mountains at the easiest and most logical point, Anaktuvuk Pass. "The state took a right-of-way right through our village," recalls Jack Ahgook. "Nobody ever told us about it. We woke up one morning and the state was here."
The Federation leaders expect the oil companies to be every bit as devious and stingy as the state. The oil companies claim that they will provide jobs for the natives, and that therefore it is to the natives' advantage to have oil fields developed and a pipeline built. Federation officials don't believe them. They say a token few natives have been hired and a few more probably will be hired in the future, but they doubt that natives will get good jobs or will get many jobs at all. TAPS has promised the Department of the Interior that "continuously during pipeline construction [it] shall conduct a pre-employment and on-the-job training program for Alaska natives adequate to qualify them for initial employment and for advancement to higher paying positions thereafter. [TAPS] shall do everything within its power to secure the employment of those Alaska natives who successfully complete [the] training program." Native leaders doubt the promise will produce many jobs. It had originally been proposed that TAPS promise to hire a certain quota of natives, but TAPS argued that there weren't enough qualified natives to fill a quota, so the requirement was dropped. Emil Notti claims that under the existing requirements, there's no reason to doubt that there will be outright discrimination. "The oil companies will have clean hands," Notti explains, "but they contract out all their work, and the contractors don't hire natives."
In their direct dealings with the oil companies, some natives already feel that they've been cheated. The Department of the Interior asked all six native groups that claimed land in the path of the pipeline to grant waivers explicitly consenting to the lifting of the land freeze and granting a right-of-way permit. Five of the six groups agreed. The sixth, the Arctic Slope Native Association, did not. The Eskimos' attorney, Frederick Paul (a son of William Paul), opposed signing the waiver because he thought that by relinquishing their legal right to obstruct the pipeline, the natives would be giving up what little leverage they had to compel a settlement of their claims. The Eskimos weren't eager to sign anyway, and they didn't. The Athabascan Indians of the Tanana area, around Fairbanks, did sign. TAPS and oil-company representatives had spoken with native leaders, including Alfred Ketzler, and convinced them that if the natives signed waivers they could expect substantial economic gains: natives would be hired for the work, and native companies would be given contracts if their prices were even roughly competitive with white companies. The natives expected the oil companies to come across"You take a man at his word," Ketzler later explainedbut they received no contracts and almost no jobs. The native leaders were outraged. "We've been cheated by a bunch of sharp oilmen," Ketzler said bitterly after it was clear that he and his people would get nothing. But the natives didn't take their bilking lying down. Instead, the Tanana chiefs got together and decided to rescind the waivers and to sue TAPS for $40 million in damages.
The brief for the suit, which was filed on February 4, told the natives' story of how they had been conned. "Prior to July, 1969 [the original date by which TAPS had asked for a right-of-way permit]," it said, "the defendants [TAPS and the pipeline companies of all the involved oil corporations] began approaching the plaintiff villages [Allakaket, Bettles, Minto, Rampart, and Stevens Village] . . . [to ask the villages for] waivers or releases of their claims to the land over which the pipeline will pass. . . . The defendants . . . [said] that if releases of the native claims were executed, the plaintiffs would receive preferential employment opportunities on pipeline construction work, and preferential treatment in obtaining contracts on the pipeline construction. The . . . DNH Development Corporation was organized to take advantage of the promised contract rights. The defendants promised that the DNH Corporation would be given a 'right of first refusal' on contracts within its capacity; that it would receive contracts on a negotiated basis rather than on a 'bid' basis; that it would receive contracts upon which it was not the low bidder if its bids were 'competitive'; and that it would receive a 'letter of intent' for use in negotiating joint ventures and other arrangements with the third parties possessing technical or financial ability, for the purpose of taking advantage of DNH's preferential contract rights.
"At a meeting financed by the defendant on behalf of TAPS held on July 27, 1969, the Tanana Chiefs' Conference, a regional native organization acting on behalf of the plaintiff villages, executed a resolution authorizing construction of the pipeline in return for the promised employment and contract preferences. On the basis of the Tanana Chiefs' resolution . . . the plaintiff villages signed 'releases' offering to release their claims and agree to the pipeline construction in return for 'one dollar . . . and other considerations,' i.e., the promise of preferential employment and contract opportunities. . . .
"On September 11, 1969, the defendants met with representatives of the plaintiff villages. The plaintiffs delivered the signed resolution and release to the defendants and were given a letter of intent from TAPS. . . . The defendants repeated . . . that the plaintiffs would receive preferential employment and contract opportunities, that they would receive contracts on a negotiated basis, that they would be given a 'right of first refusal,' and that they would receive contracts upon which they were 'competitive' even if not the low bidder. . . . The representative of the defendants explained that the letter of intent didn't go that far because it would cause an adverse reaction among other contractors, that its purpose was use in negotiating with third parties, and that TAPS and its constituent companies should be 'trusted' to abide by the terms of the oral agreement. He also promised that in furtherance of the oral agreement, the DNH Corporation would be placed on the TAPS 'mailing list' for bid invitations and proposals. The one dollar was not paid.
"On September 15, 1969, the defendants filed copies of the resolution and release with the Bureau of Land Management in an attempt to induce the Department of the Interior to issue a pipeline right-of-way over the land affected. . . . On January 1, 1970, Secretary Hickel modified the land freeze as to the pipeline route. . . . The defendants applied to the Department of the Interior for a pipeline right-of-way on December 22 and December 29, 1969. . . .
"The plaintiff DNH Corporation has received no contracts from TAPS, despite numerous attempts to obtain them. It has not been given a right of first refusal on any contracts, nor given an opportunity to receive negotiated contracts. On numerous occasions DNH has requested that it be placed on the TAPS mailing list for invitations to bid and proposals, but the defendants have failed and refused to put it on any mailing lists. The defendants have frequently failed and refused to provide DNH with information or specifications necessary for bidding on jobs, and have frustrated attempts by DNH to obtain information and bid on jobs. Other contractors have received information, specifications, invitations to bid, and contracts from TAPS.
"Each of the plaintiff native villages has taken formal action to rescind any release which may have been granted to TAPS. . . ."
The day after it was decided to rescind the waivers, Alfred Ketzler said in Fairbanks, "I feel a lot better since we made that decision. I went around to the villages and persuaded people to sign the waivers. I felt it was my responsibility." Not only would the natives rescind their waivers, Ketzler said, but "if they go ahead and build it anyway, we'll enjoin them."
The natives subsequently decided to beat TAPS and the government to the punch by asking for an injunction right away to prevent Secretary Hickel from issuing a permit for a right-of-way through lands they claimed. In March, the U.S. District Court in Washington, D.C., issued a temporary restraining order that lasted until April 1. Then, on April 2, federal Judge James Hart issued an injunction on behalf of Stevens Village. It seemed certain that TAPS would not be able to start construction before the spring of 1971, a full year behind schedule. ("It was a mistake to pick on the Athabascans," an Alaskan anthropologist told me. "Athabascans are mean.") For the first time, the natives had acted directly against the oil companies and against the whole course of North Slope development.
The natives have realized for years, though, that they had the power to impede Alaska's economic development in general and the development of North Slope oil production in particular. They talked seriously of enjoining the September, 1969, lease sale, and, although they decided not to try that, the state government is well aware that through the land freeze, native claims have already prevented economic development in most of Alaska. (The state administration is probably optimistic about the amount of development that would have taken place without the freeze.) The natives are frankly determined to keep the state tied up indefinitely if their claims aren't settled. They were heartened by the decision of the Ninth Circuit Court of Appeals reversing the state's earlier triumph in its suit to have the land freeze lifted. They believe that the decision imposes what Ramsey Clark has called a "judicial land freeze" on Alaska.
Some native leaders think they not only have the power to tie up Alaskan development but also form a decisive swing vote in Alaskan politics. The Alaska Review of Business and Economic Conditions reported in 1967 that one reason for the natives' assertiveness about land claims was their "growing awareness . . . of their political strength. Adult natives comprise about one-fifth of the voting population, and 1966 was an election year. Political candidates spent extra days visiting the far-flung native villages, and their stance on the land-claims issue made headlines." The natives believe that the native vote, which is traditionally Democratic but in 1966 went Republican, is what gave the close gubernatorial election to Walter Hickel. Hickel reportedly isn't convinced, but native leaders now believe that they can make or break other political candidates in the future.
Although the native leaders believe firmly in their ability to exert political and legal pressure, they haven't relied on it. Their strongest appeal, both within Alaska and in Congress, has been moral. The Federation's most impressive piece of printed propaganda is an eighteen-page booklet entitled Native Alaska: Deadline for Justice. The introduction to the booklet reads:
"The United States and its people are offered a priceless opportunity to do justice to its aboriginal people whose treatment in the past has reflected little glory on our nation.
"A hundred years ago on the Western frontier, Indians and whites were killing each other for possession of the land. Today in Alaska, 60,000 Indians, Eskimos, and Aleuts are fighting to preserve their lands from expropriation by the state. They are waging a peaceful war for a decent share of America's future. Congress is now deciding their fate. The Alaska native people urgently appeal to the conscience of every American for help in their search for justice.
"Alaska's Indian, Eskimo, and Aleut citizens have conclusive legal and moral rights (original Indian title) to 340 million acres of land90 per cent of the Alaskan landmass. They are asking Congress to grant them formal legal title to forty million acres essential to their present livelihood and future well-being, and for just compensation for the remaining 300 million acres they feel are beyond the possibility of saving. Their hopes are expressed in legislation submitted to Congress, and presently pending before the House and Senate Interior Committees.
"The decision Congress makes will profoundly affect the lives of Alaska natives for generations and will reflect on the honor of our nation for centuries."
The booklet proper then begins: "To the Alaska natives, the land is their life; to the state of Alaska, it is a commodity to be bought and sold. Alaska native families depend on the land and its waters for the food they eat, hunting and fishing as they have done for thousands of years."
Then comes a quote, set off in blue type: " 'Nothing is so sorrowful as for a hunter, empty handed, to be greeted by hungry children. They will look at your feet. If there's blood on your feet, they know you got a moose.' "'
Proving that "the land is their life" and that "Alaska native families depend on the land and its resources" has been a crucial part of the natives' struggle. The native leaders have based both their legal and their moral cases on the argument that they own the land by virtue of "aboriginal use and occupancy" i.e., that they have used and occupied the land "since time immemorial."
The natives "used and occupied the land to the extent that it was used and occupied by human beings," Ramsey Clark told the House Interior Committee's Subcommittee on Indian Affairs in August, 1969. Clark then suggested that the Committee let Federation official Willie Hensley tell how his own Eskimo family had used and occupied the land when he was a child.
"You understand," Hensley said, "that there are 200 or more villages scattered around the state, and once you move outside of the urban areasthat is, Anchorage, Fairbanks, Juneau, and a few othersyou are really in Indian or native country.
"In these villages scattered along the coast and the rivers of Alaska, we make our living supplemented by work occasionally [outside the villages]. . . . Life has not changed a whole lot from the old days.
"For instance, when I was growing up, we lived outside of the village like a lot of people did then. . . . Our family . . . had several locations that we used at different times of the year, and I estimate we used probably 100 to 125 square miles in our subsistence, the hunting and fishing which was our livelihood.
"We had to camp along the coast where we fished during the spring and winter and also we moved upriver probably ten miles, where we hunted muskrat and duck and also fished in the rivers, and then we moved down to the coast again and fished for other types of animals and also hunted seals.
". . . We had to use a lot of land, and you compound this by thousands around the state and you see the extent of our use and occupancy."
The Eskimos are the native group that has retained the most of its original way of life, and they are also the group that roamed the greatest distances over the most desolate territory in order to subsist. Eskimos have therefore been used as the prime, or at least the most striking, example of aboriginal use and occupancy. A number of Eskimos prepared statements to read before the House Subcommittee on Indian Affairs in September, 1969. The younger people talked largely about how angry they were. The older ones described their memories of the old way of life. Weir Negovanna, James Kagak, and Samuel Agnassaga, three old people from the village of Wainwright, said:
"We want to tell you as the appointed delegates of the old people of Wainwright about the ways of our people.
"We lived off the land, going many miles up our rivers and over our lands to provide for our families.
"Up the Utokok River families had their own fishing and hunting camps where they would go at the proper time of the year. We would get our grizzly bear up in the mountains a hundred miles from the coast, caribou which we sometimes put in corrals, wolves, wolverine, all kinds of foxes, moose, lynx, squirrels, porcupine, elk, marmot, and mountain sheep.
"Mr. Hopson [Eben Hopson, then executive director of the Arctic Slope Native Association and now executive director of the Alaska Federation of Natives] tells us you do not believe that we traveled a hundred miles in all directions inland. You are wrong.. All you got to do is look at our country to believe us. . . .
"From the sea, we got our polar bear, whales up to sixty or seventy feet long. Several kinds of whales we depended on like belugas, bullhead, killer whale, sperm, and others whose white man's name we don't know. . . .
"Near Point Lay we could not drink the water at a certain place because it was spoiled by oil seepage. At freeze-up time, we once in a while would set fire to hunks of oil. In our travels to relatives, we found oil up the Colville. We know it is oil because it smells like the oil we buy from the white man. Weir Negovanna states he once was low on oil for his gasoline motor, so he put some oil he found about fifty miles cast of Barrow in his motor and he had no problems.
"The area near Wainwright is covered by coal, miles and miles of coal. We used it for heat and cooking. There are different kinds of coal, too. The government has been making the town of Wainwright buy a permit to mine the coal for about ten years now. We object to this, because it is our coal. . . ."
Another old Eskimo made this statement:
"My name is Lucy Smith Ahvakana, an Eskimo born at Point Hope, but I was raised at Beechy Point, Alaska, just twenty-five miles from Prudhoe Bay. . . . There was no work in the northern area for the Eskimo in those times, only hunting and trapping for a living.
"I was happy with this kind of life because we knew no other way of life. We lived in a drift-log house covered with sod, and we used caribou skins for our bedding. We had seal-oil lamps for lights at night, also to burn in our stoves. In wintertime we looked for drift logs and wood washed up on the beaches from under blankets of snow for our firewood. Sometimes we went for miles with dogteams when we could not find it nearby to survive the extreme cold weather. This type of living cannot be compared with present-day living conditions.
"Men had to travel many miles, in fact hundreds of miles, in order to find food such as caribou and wild game with the help of dogteams. An average day's journey with a good team is twenty-five miles, and most of the time you could not stay on the sled, you had to run on foot to help your team along.
"When a hunter had more luck with his catch than another, he shared his catch with his neighbors. This is the Eskimo way of life. . . .
"I have a home at Beechy Point and it still stands. My parents, a brother, and my first husband are buried there. My children were born there. It was our home for many years.
"On my last visit two years ago I found I no longer could call it my home, because the white man had trespassed and taken over my land and home. The land around my home was torn, also the graves of my loved ones were trampled with machinery. I did not like what I saw and I went to see a lawyer in Anchorage. His name was Ted Stevens, a lawyer working for Mobile Oil at that time. [Stevens is now Alaska's senior senator.] I asked him in what way he could help me. The first question he asked me was, 'Do you have title to your land?' I answered him, 'I don't think I need title to my own land and home, because this was the homeland of my parents and their ancestors before them, for many years.' He did not say anything for a while, so I asked him another question: How come a white man can trespass onto my land with no permission, when he knows the Eskimos could not trespass onto white man's land? The lawyer's answer was that the white man did not know that the Eskimos lived way up in Beechy Point and offered to pay for the damage of my land in the amount of $2,500.
"Even though I was not rich I could not accept this offer because it left me nothing. . . ."
And 72-year-old Alfred Hopson said, "Research has found, digging through our old villages, that Barrow was inhabited 1,600 years ago and a nearby village called Birnik was inhabited 1,900 years ago. At 'Walapac,' twelve miles south from Barrow, . . . they found evidence from the old village to prove it was inhabited during the Punic age, 5,000 years ago. Our forefathers tell of travelling far and wide among settlements, how they fought Indians, suffering many massacres, but were able to keep the land. Many now living say the oil derricks on the Arctic Slope stand where their grandfathers fought and starved to keep their land."
The natives' arguments about aboriginal use and occupancy have left many people unconvinced. Many Alaskans believe that while the natives may have used and occupied most of the state in the past, they use and occupy relatively little of it today. And some people who concede that the natives still do use and occupy the land doubt that aboriginal use and occupancy will stand up in court as a basis of ownership. Senator Jackson believes that by legal precedent a claim based solely on aboriginal use and occupancy is clearly invalid. Even some of the natives' attorneys concede that use and occupancy alone may not be enough. When Representative E.Y. Berry of South Dakota asked Ramsey Clark, "What are the legal facts to support the contention that the natives owned all of Alaska?" Clark replied, "The law . . . is fairly clear that while use and occupancy is a measure of presence, the real question is dominion."
The natives believe that they can prove dominion, too. John Borbridge, general manager of the Tlingits and Haidas and first vice-president of the AFN, told the House Subcommittee on Indian Affairs:
"While we and the Eskimos and the Athabascans have combined here in the modern day, at a much earlier time . . . we asserted [the right of dominion] against one another, and our history is rich, not only the times that we came together but times that we frankly were asserting these rights as against one another, Athabascan against Eskimo and Athabascan against Tlingit. . . . In southeast Alaska where the Tlingits and Haidas asserted their dominion . . . our assertion of rights was over-all as a Tlingit and Haida group of people. We asserted this as against all other comers. . . ."
Representative Ed Edmondson of Oklahoma then asked, "When the Russians took possession of the area which they occupied, was there resistance to their occupancy and was there intent to exclude them from the place?"
Borbridge replied, "Mr. Congressman, I am very pleased that you asked that question. In Yakutat the Russians werethere may be a politer word than 'massacred' but we drove them out. In Amchitka, Alaska, likewise, we had an encounter in which we came out favorably. But perhaps even more importantly, when the Russians wanted fish or when they wanted game, they recognized that this was the land of the Tlingits and Haidas. They did not hunt on the land because it was not theirs, nor did they fish, but they traded with the Tlingits and Haidas so that we in effect were establishing our dominion as of that time and this was clearly recognized by them."
The native leaders are convinced that although a court case to establish the validity of their claims might take many years, they would certainly win. They cite the Tlingit-Haida case as their clearest precedent. The court's ruling that if the United States government hadn't taken land for the Tongass National Forest the land would still belong to the Tlingits and Haidas and the ruling that some two and a half million acres of land that weren't incorporated into the National Forest still belonged to the Tlingits and Haidas seem to the Federation leaders to prove that the natives still own all of Alaska that the federal government hasn't specifically appropriated.
Native leaders resent the fact that few people concede the merits of their legal case. Alfred Ketzler told me in early 1970 that he was tired of having people tell him, "You have a good moral claim, but not a legal claim." In July, 1969, Ketzler wrote a letter to the editor of the New Republic thanking him for a recent article on land claims but adding: "I want to correct Mr. Henninger [the author of the article, who had written, "The government's moral obligation to compensate the natives for their lost land rights is generally conceded, but establishing a precise legal obligation that could determine the terms of a settlement has proved virtually impossible."]: we have not lost our land, ours by law, and will not lose it until Congress expropriates [the land] . . . it is generally conceded that our title has not been "extinguished." Recognition of the natives' legal right to the land is important, Ketzler said, because "to those who view [the land claims] problem as one of alleviating poverty, and not involving property rights, our demand for some $10,000 and 800 acres per capita seems unreasonable, even outrageous." Recognition of "our legal rights," Ketzler said "is the keystone to a fair, generous and just settlement of our land claims."
Frederick Paul, the attorney for the Arctic Slope Native Association, made much the same point in an essay dated March 20, 1969. "Why is it," Paul wrote, "that if the sovereign wants to build a road over a white man's property, automatically one knows the sovereign must pay him its value; but when the sovereign wants Indian lands, one worries about the need of the Indians and justifies payment and the amount thereof by the criterion of need?
"President Johnson in a sense adopted this rule [when he said]: 'Give the native people of Alaska title to the lands they occupy and need to sustain their villages.'
"The 1968 Department of the Interior proposal [for settling native land claims], bearing Bureau of the Budget approval, was recommended to the Congress because of 'need.' . . .
"Why is it . . . that the amount of payment must be excused by 'what is necessary for the future economic and social development of the community,' as Walter J. Hickel, when governor, suggested? . . .
"How about the white man's rule of fair value?"
The natives haven't convinced Congress that their claims should be regarded in terms of white men's property rights; nor have they convinced even Senator Jackson, who has pushed harder for a settlement than anyone else in Congress, that their legal case is worth much. Still, few people in Congress or elsewhere doubt that on moral grounds, they deserve something. Most Alaskans think the natives should get some land and some money, and state officials would like very much to remove the legal barriers and threats to economic development. The prevailing feeling in the state is that the land-claims issue has dragged on much too long, and some kind of settlement would be welcome.
In Congress, the passage of a settlement bill depends more heavily on what Ramsey Clark concedes is the "fragile support" of individual conscience. Clark explains his own feeling about land claims by saying, "You have to go by your own experience, and mine is in the Southwest," where, he explains, the Indians have historically been pushed from bad land to worse, and the oil industry has taken petroleum out of the ground all around them, refined it and sold it far away, and left them with few jobs and little lasting benefit. Clark says that Congressmen from states with large Indian populations have seen the same or similar spectacles, and many of them would like to see the Alaskan natives do a little better. There is a feeling in Congress, Clark says, especially among the men from Indian states, that everything the government has done for American natives so farthe treaties, the reservations, the Bureau of Indian Affairs, the Indian Claims Commissionhas failed dismally, and Alaska provides a last opportunity to do something right.
Clark told the Senate Interior Committee in August, 1969, that "Congress in a spirit of hopeful idealism created the Indian Claims Commission, conceived to settle once and for all native claims, legal, equitable, and moral, against the all-usurping leviathan. The technique, an analogy to judicial process, was wrong, unrealistic, and harmful. It created conflict between the United States and Indian tribesthe conflict of massive and protracted litigation with its frustrations and injustice. It looked backward when the need was to look forward. The issues of fact were what happened often a century or more ago. It reopened old wounds, ancient wrongs, laid them bare, examined them minutely. The need was to uplift, to unite, to move ahead. It created fictitious issues. What was the fair market value of the sixty-eight million acres of land in California in 1853? But in 1853 there was no market, no ascertainable value, no buyer, no seller, and later developments known to all . . . had brought great cities, millions of people, gold and oil discoveries, orange groves, an agricultural product that would have fed the nation of 1853 twice over. It turned native people inward, toward themselves, set [them] apart and against their government and their fellow citizens. Finally, for something that happened to ancestors they never knew in times they never lived, they were paid dollars that were soon gone and left them more impoverished and embittered than ever." He says that Senator Jackson, who as a young representative introduced the bill that created the Indian Claims Commission, feels particularly responsible for that, and particularly eager to get a settlement through Congress.
The natives' main enemy in Congress, Clark believes, is just plain lethargy: native claims don't rank high on anyone's list of priorities. (Senator Jackson reported in late March, 1970, when his committee was supposed to be meeting every other day on the land-claims issue in an effort to get a settlement bill out, that simply assembling enough senators for a quorum was a major problem.) But some of the barriers to obtaining the settlement the natives want are much more specific. First, the amounts involved stagger the imaginations of many Congressmen. Forty million acres may be only about a tenth of Alaska, but it equals the total areas of several smaller states; $500 million may represent only three dollars an acre for land worth as much as $28,000 an acre, but it looks like a great deal of money to Congressmen trying to get a few thousand extra dollars for impoverished constituents of their own. Congressmen from states with large Indian populations fear that a generous Alaskan settlement would be regarded as a precedent and would stir up demands among the natives back homethis category reportedly includes such men as Senators Bellmon of Oklahoma, Anderson of New Mexico, and Fannin of Arizona, and even the generally liberal Senator Church of Idaho. Less widespread is the desire to protect vested interests in Alaska; Senator Mark Hatfield of Oregon, for instance, is reportedly opposed to any settlement that would give natives in southeastern Alaska ownership of timber lands currently exploited by the Portland-based Georgia-Pacific Company.
The biggest stumbling block in the natives' settlement plan is neither land nor money, though, but royalties. Ramsey Clark argues that "The royalties are the most important thing to put through. They represent power. They give the natives participation in Alaska's development. They aren't a dole." Jackson, too, thinks royalties are important. He is especially concerned with providing a continuous source of funds, so that a cash settlement won't be squandered in a fraction of one generation. (He is impressed by the fact that unlike most Indians in the "lower 48," the Alaskan natives haven't insisted on an immediate cash payment.) In the House Interior Committee, Representative Ed Edmondson of Oklahoma has pushed hard to give the natives a 2-per-cent royalty.
The opposition to the idea of royalties is formidable. The Interior Department argues that it does not favor a royalty for the natives' own good. The Department's reasoning is a masterpiece of logic. In February, 1970, Senator Jackson asked Walter Hickel for the Department's opinion of the natives' proposed land-claims settlement bill. Hickel replied, "From the standpoint of the Alaska natives it would be to their benefit to be entitled to a fixed amount of $500 million as opposed to an unknown overriding royalty. From the standpoint of the natives in Alaska, the $500 million cash settlement is, in our opinion, far superior to a settlement based on an unknown value. We are therefore opposed to the provision of [the bill] providing for a 2-per-cent overriding royalty in addition to the $500 million." Presumably the uncertainty of how much more than $500 million they were going to get would be too much for the natives to bear. At any rate, the administration's bill includes no royalties, and Jackson expects the administration to lobby against the natives' proposal.
Some congressmen just don't like the idea of royalties. Emil Notti says that when a group of Federation representatives went to see Senator Fannin the Senator said, "Boys, don't even talk to me about 2 per cent. I don't even want to hear about it." Also, of course, the state of Alaska believes it should get all 12-1/2 per cent of the royalties and bitterly opposes any plan to give the natives some. Alaskans tend to feel that although the natives' ancestors may have deserved some kind of payment, the current natives don't. They're afraid that if the natives get a lot of land, they'll fence off areas that are currently open to the public for hunting and fishing. And they think the native leaders are "too pushy" and want too much. One Congressional staff member who has done research in Alaska says the white people there like to think that they got ahead on the frontier and they shouldn't have to help a bunch of shiftless natives. An Anchorage lawyer agrees that Alaskans have a "frontier mentality" and says, a bit more analytically, "Alaskans have never had much social conscience. I talked this morning to a [high school] civics class . . . about native land claims. There were thirty kids in the class. The attitude of the kids was, 'Fuck the natives, don't give them anything.' They say, 'Get out of Vietnam,' but they don't want to give the natives anything."
The natives will almost certainly get something, and the absolute amounts of land and money will undoubtedly be large, but there is no conceivable chance that they'll get all they're asking for. Even in the villages, Alfred Ketzler says, "people are a little apprehensive" about what the settlement will be, and native leaders who keep track of what's going on in Washington know full well that some compromise will be necessary. They will be lucky to get twenty million acres of land by the time a settlement bill clears the Senate. And they may clear the Senate with $500 million, but they probably won't make it through the House. The royalties are a question mark. If they get royalties at all, they won't get them "in perpetuity," which is what they want. Even Jackson thinks there should be a time limit on royalties. (Joseph Fitzgerald, who presided over the committee that wrote the report on "Alaska Natives and the Land," opposes a perpetual royalty on the ground that it would make racial separateness permanent. No one in a position to swing much influence or power besides the natives and their lawyers favors a perpetual royalty.) Then there is the problem of how the money will be administered.
It's pretty certain that the sooner a settlement bill is passed, the more the natives will get. When the land freeze is lifted, at the end of 1970, the economic pressure for a settlement will disappear. Perhaps more important, the further the September lease sale recedes into history, the less vividly people will remember that a small fraction of the state once rented for $900 million, and the more extravagant the natives' claims will seem.
Despite the urgency of getting a bill passed quickly, Ramsey Clark doesn't think the natives can afford to push Congress too hard. If they do, Clark says, "Congress will throw the settlement into the Court of Claims," which has never settled a case for more than $35 million and is simply not geared for big settlements. If the natives' case goes to the Court of Claims, Clark says, "it has already fallen flat."