Note from the Author: This is the paper as presented. See the poorly abridged edition preceding this paper. (From a scrapbook of my publications.) Remember: This paper was written almost 10 years before the Alaska Native Claims Settlement Act.
*Paper presented at the Thirteenth Alaskan Science Conference, August 25, 1962, Juneau, Alaska. Dorothy Jean Ray
The Eskimo and the Land: Ownership and Utilization
This paper used with permission of the author, for educational purposes only.
On May 10, 1962 an editorial of the New York Times signalized the awakening of the Alaskan Eskimo to problems of survival and the human rights which necessarily become the point of reference for their solution. The core issue, as Eskimos from Barrow to the Aleutians see it, is the utilization of their own land and its products without restraint.1 The key words are "their own land," which by inclusion in the public domain of the United States had ceased to be theirs. Its recovery either through unrestricted use in the future or through recompense for past taking has just recently crystallized as a possibility to them.
The rather dramatic appearance of the issues of aboriginal rights on the streets of Manhattan implies a sudden awareness. On the contrary, the Eskimos have long been cognizant of an abridgment of their rights, but heretofore have taken a passive role, first, because of an inability to formulate and organize their own position, and second, because of the more or less unwieldy stand of the Federal government toward all Indian rights until the Congress created the Indian Claims Act in 1946.
The Eskimo position, until recently, had been complicated by several historical trendsthe submersion of their hunting and trapping issues to that of the reindeer industry, their involvement in the policy of native assimilation, the establishment of Indian reservations, and the misinterpretation by Alaskans and Alaska courts of the common law in regard to Indian rights.
Hundreds of grievances by Eskimos to government officials, teachers, and missionaries have piled up over the decades, most of which were ignored even when pressed to the fullest. In one example, Governor Thomas Riggs, Jr. in 1918 stated that the immense Yukon Delta Bird Reserve, 20,000 square miles in extent, was a "reservation on paper only. It is Inhabited chiefly by Eskimos and Aleuts . . . who would suffer hardship if the law were enforced."2 Two years later he recommended formation of a committee for restoration of certain reserved lands to the public domain including the Yukon Delta Bird Reserve.3
Restricted hunting areas, licenses, and occasionally, residence requirements plagued the Eskimo hunters and trappers. Corrective action by them toward regulations antagonistic to subsistence living in early years was unnecessary because of law enforcement difficulties. But with the use of the airplane for transporting officers to the scene of the crime game regulations became a reality and a threat to their way of life.
The climax of the long tilting at game laws came in 1960 at Point Barrow with the sensational surrender of 138 Barrow Eskimos and 138 eider ducks to protest the Migratory Bird Treaty, which prohibits the shooting of these birds. This timely action, with the significant assistance of the Association on American Indian Affairs, precipitated in November, 1961, the largest gathering of Alaskan Eskimos since the pre-mail order catalog trading fairs, the Pt. Barrow Conference on Native Rights.4 Two Eskimos then trekked to Washington, D. C. seeking Congressional aid, with the resultant nation-wide publicity.
Because Alaskan natives had not entered into treaties with the United States, had not been confined to reservations, and had met foreign infiltrations with an illusory sense of balanced integration, many persons considered them in a different category from the rest of the American Indians. There is no better example of this view than in extreme and erroneous statements made during the 1950 Statehood hearings in Washington, D.C. such as "We don't recognize [aboriginal rights] in Alaska," and from a statement prepared by a Seattle law firm, " . . . there are no tribal or other such titles in Alaska lands, and . . . Indian title simply does not exist there."5
This view also fit perfectly into the great "complete assimilation" drive in the 1940's. After game regulations had tightened and the important crises in the reindeer industry disposed of, a number of Eskimos entered into aggressive political activity stressing economic and social assimilation for all natives of Alaska. This honorable, but confused, position was not entirely confined to Alaska because liquidation plans for certain United States Indian reservations were already under way by the early 40's. But the Alaskan integration took the unprecedented form of legislation. The unique "Equal Rights Bill" of 1945 was concerned neither with citizenship nor land ownership, but moral and social equality. Citizenship had been dealt with once and for all by the Nationality Act of June 2, 1924, redundantly reiterating the fourteenth amendment to the Constitution of the United States.
When hearings were held in 1950 for discussion of reservations to be established at both Shungnak and Barrow, it is small wonder that the proposals were flatly rejected in the fact of such an act with its social and political complexities. Ostensibly the Barrow Eskimos turned down their 730 square miles of waterfront property because it was too small, but they also were reluctant to jeopardize their new-found status by accepting a proposal setting them apart from the rest of the citizenry. They were influenced also by the strong opposition to reservations by non-Eskimo political leaders working closely with them.
But through the recognition of the principle of land stewardship involved in reservations, and the concomitant discovery that assimilation policies and legislation did not yield the success they had dreamed of, they soon refocused their attention on rights as Eskimos, an about-face of their former stand. This reversal, however, was by no means unanimous and the Eskimos, with their still rudimentary understanding of western legal concepts and pressures from numerous groups, many equally naive, are divided on many issues.
Awareness of their problems emerged not only within their own consciousness, but externally through positive attitudes of the Federal government with respect to Indian rights, which culminated in the creation of the Indian Claims Commission in 1946. By this act the Congress permitted any identifiable Indian or Eskimo group with a valid claim against the United States government to sue for wrongs, ranging from the mishandling of tribal funds to the fraudulent or unconscionable taking of lands. (The Act of August 13, 1946, c.1049, 25 U.S.C.) The deadline for filing claims before the Commission was 1951, and 1961 for them to be heard. The time for hearings has been extended, but so far no further action has been taken on additional filing.
Prior to this act claims against the United States government were brought before the United States Court of Claims, established in 1855 to permit an individual or group to sue a sovereign state. But in 1863, Indian tribes were denied the right to sue in the Court of Claims except by special jurisdictional act.
Despite this reversal, original inclusion of Indian groups explicitly recognized Indians as plaintiffs with grounds for suit, a right that might not have been honored by any other country. However, even before 1855, various Supreme Court decisions had already established precedents concerning Indian rights, including land ownership and title.
Two opinions of the Supreme Court written by John Marshall in 1823 and 1832 recognized Indian tribes' possessory right of land as title and their sovereign status. In the case, Johnson's and Graham's Lessee v. McIntosh (8 Wheaton 543) Marshall wrote, "While the different nations of Europe respected the right of the native, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy."
In 1832 in Worcester v. Georgia, the sovereignty of Indian tribes was stated as follows: "The Indian nations had always been considered as distinct, independent, political communities, retaining the original natural rights . . . the settled doctrine of the law of nations is, that a weaker power does not surrender its independenceits right to self-governmentby associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of its right of government, and ceasing to be a state."(6 Peters 515)
In 1835 in Mitchell v. United States (9 Peters 711) land title and occupancy were again involved, and Marshall said that "it is enough to consider as a settled principle, that their right of occupancy is considered as sacred as the fee simple of the whites."
Everything applicable to the territorial United States was applicable to Alaska because at all times the adjudication of land problems in regard to Indian tribes has been under Federal jurisdiction. Therefore, the provision in the Alaska Treaty of 1867 that "the uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country," and the provision in the Organic Act of 1884 that "the Indians shall not be disturbed in the possession of any lands actually in their use and occupation or now claimed by them . . . is reserved for future legislation by Congress," merely extended in principle the Supreme Court decisions.
This has, at last, been extended to, and definitely stated for, Alaska in the decision rendered by the Court of Claims, October 7, 1959 in The Tlingit and Haida Indians of Alaska v. the United States: "the use and occupancy title of the Tlingit and Haida Indians . . . was not extinguished by the Treaty of 1867 between the United States and Russia, nor were any rights held by these Indians arising out of their occupancy and use extinguished by the treaty."6
The applicability of this decision to all of Alaska will be of tremendous importance to future land questions of Alaska. It should be emphasized here, however, that title as applicable to Indian or Eskimo tribes is in no case individual title as interpreted in Anglo-Saxon law, but title to land as vested in any sovereign nation.7
This tardy and hard-won decision merely seconded observations made by early governors of Alaska. Lyman E. Knapp, for instance, said in 1891, "The natives consider themselves the true owners of the country, with all its accompaniments of soil, forests, streams, and navigable waters . . . . The white man is an invader to be tolerated as a matter of necessity."8 John G. Brady in 1900 said, "They [the Eskimos] have never given us trouble. We are invading their immemorial domain."9
Although many subsequent decisions have substantiated those of 1823, 1832, and 1835, the complicated issues involved in today's cases of land ownership require specific evidence of group identity, and territorial extent, boundaries, occupancy, and use. The man on the street wonders how this is brought about.
Only an anthropologist, appearing before the courts as an expert witness, can supply this evidencenot only from his own field work, but from archival sourcesaccounts of travelers, explorers, missionaries, government officials, etc. His interpretations make possible the coordination of the Anglo-Saxon and Indian legal and cultural systems.
The utilization of relatively unexploited archival materials to establish the character and extent of Indian tribes from first-hand accounts has revealed an unsuspected wealth of information. The evaluation of this material within anthropological concepts has been termed ethnohistory, an approach that will undoubtedly be used to a greater extent in the future as a reinforcement to archeological, ethnological, ecological, and demographic studies. As it is, the material has already proved as sound, within its scope, as field material, and invaluable in the development or reinterpretation of certain political and economic aspects of Indian culture.
It is now my intention with a brief example derived entirely from archival material to establish that political and economic considerations of sovereignty, land ownership, occupation, and use, and tribal identification dealt with in the culture of the American Indians are similarly pertinent to the Seward Peninsula Eskimo.
Certain general discussions of primitive peoples still regard the "Eskimo" as the model of nomadic people without attachment to specific areas and villages; as scattered roamers without national consciousness; and as being politically disorganized without leadership. Such a view does not take into account the true nature of western Eskimo culture, particularly that of the Bering Strait region.
Three groups of Eskimos occupied the Seward Peninsula in the nineteenth century, the Kingegamiut (Wales), the "Kaviagmiut" (Mary's Igloo), and the Malemiut, each with material culture, kinship organization, village organization, and dialect alike enough to be classified hereafter under the expedient term of Seward Peninsula Eskimo. A few representatives of Unalit speakers were scattered around Golovin Bay. The important difference of all, however, lay in their separate and specific tribal territories and variant subsistence patterns.
The two principal groups in population, number of villages, and territorial extent were the Wales and Mary's Igloo people, the Malemiut apparently having been late comers to the area from the northern interior.10 The Eskimo names of these two groups are derived from large and important villages, both capitals of their territory: Kingegan ("high") and Kauwerak ("gravel bar"), once a large inland village 7 airline miles downstream from present-day Mary's Igloo on the Kuzitrin River.
According to both Dall and Kelly, the Wales people occupied a more restricted area than the Kauwerak people, but were almost as numerous. By the middle of the nineteenth century, the Kauweragmiut (as the Kaviagmiut rightly will be called), with the exception of the Wales territory from a little south of Bering Strait to Cape Espenberg, and a Malemiut strip along Kotzebue Sound, stretched from Kotzebue Sound to Norton Sound almost as far south as Elim. This extensive occupation of almost the whole of Seward Peninsula led Dall to suggest the name Kaviak, his version of Kauwerak (and hence the name for the people), as the name for the peninsula.11 Petroff's map (1880) and Nelson's (1898), a copy of Petroff's, erroneously place the northern boundary on the coast too far south.
The two villages represented the two general subsistence provinces of the peninsula; one, the island and coastal villages strategically located for walrus, whale, and polar bear (Sledge, King, and Little Diomede islands and Cape Prince of Wales), and two, the inland and coastal villages dependent on fish and caribou. (Kauwerak, Sinramute, Ayacheruk [Ayaseyuk], Atnuk, etc.) All used seal and beluga to a great extent. A third province was the extreme inland of Seward Peninsula, peopled by Malemiut living principally on caribou and whose fixed villages were either in Kotzebue Sound or Norton Sound.
The principal political unit was the permanent winter village which, through well-defined movements of its inhabitants in established seasonal routine utilized and controlled extensive and specific territory many miles in all directions. Inland people might travel even farther afield to sealing grounds or coastal people to caribou grounds. The inhabitants of the villages, in various groups, utilized the same specific places year after year to such an extent that it appears that a concept of private ownership of fishing areas, berry patches, and caribou areas was evolving. Coastal sea mammal hunting was still under tribal control. From the combined writings of numerous reports, books, and manuscripts before 1900, it is possible to reconstruct the general pattern of living during the year for the entire peninsula, and compile a detailed compendium of plant and animal utilization.
The Eskimos were extremely conscious of their tribal affiliations, extent of their territory, and relations with foreign groups. Inhabitants of the smaller villages felt a strong tie with members of the larger capital. Wherever they went they identified themselves as belonging to the specific larger group and were acutely aware of their crossing over into other tribal territory. One man from Kauwerak told John Kelly that his tribe's territory extended not only throughout the peninsula, but had once included a great deal more, including Little Diomede and King islands.12
Contiguous Eskimo groups were usually on good terms, but lived under constant tension from possible attacks by Siberians and Indians. Commander Moore in 1849 found it difficult "to induce" Seward Peninsula Eskimos to go with him "to the habitations of the distant tribes."13
Dall, in discussing the Indian and Eskimo territorial boundaries said that "both exhibit great jealousy in regard to their boundary lines. These lines are generally formed by the summit of the watershed [of rivers] . . . Any man of either race found on the wrong side of the line is liable to be shot at sight."14
Kotzebue said that the Chukchi lived in "eternal enmity with the Americans . . . [declaring] them all to be bad men."15 And, Captain Cogan, taking Siberians inland near Port Clarence in the 1890's said, "three more frightened men than they, never lived, before the journey was ended."16
Nevertheless, despite the tensions and bad feelings, trade was conducted with all of them by the Seward Peninsula Eskimos who were vigorous and clever traders. Trading journeys were made to Norton Sound, Kotzebue Sound, and Port Clarence. The latter two places were sites of international fairs where European products were obtained before Europeans settled permanently in northern Alaska.
The trading of Seward Peninsula reached its zenith in the extravagant inter-village trading festival that was sponsored by the chiefs of the two main tribal villages, Kingegan and Kauwerak, whenever sufficient food, furs, clothing, and manufactures had been collected for giving and trading, usually every two or three years.17 Not only was the festival an important distributive device, but it reinforced kinship, village, tribal, and political activities, including the display of prestige accorded the sponsoring headmen by their lavishness.
Nineteenth century Seward Peninsula was well-populated, both on the seacoast and inland. Seventy-four villages have been noted from maps and descriptions between Kotzebue's voyage in 1816 and the discovery of gold on Anvil Creek in 1898. They are permanent villages or well-known temporary seasonal ones, the majority of which are mentioned by more than one writer, often spanning a long time. Kauwerak, for example, is mentioned by Beechey in 1826 as an important village18 and in 1791 before either Kotzebue Sound or Port Clarence had been "discovered," Sauer spoke of the Ka-ooveren river and of a large village, supposedly Russian, on its shores.19
Parenthetically, it might be noted that although 74 villages is an impressive number, subsequent field work has established that even more existed. Not only that, but the Seward Peninsula Eskimo named every stream, hill, and prominent point, usually after an environmental feature. Probably not a foot of Seward Peninsula was unknown to them.
One of the most significant changes during the second half of the century was the disappearance of inland villages, a result of a decrease in caribou after the coming of the whalers and firearms. When Mate Hobson journeyed from his ship in Port Clarence in 1854 overland to Kotzebue Sound via Kauwerak (Cuv-vi-rook), American River, and Goodhope River (Pittock), "a route . . . much frequented by the natives," he passed 14 villages and numerous herds of caribou.20
In 1866-67 when the Western Union Telegraph Expedition established stations at Unalakleet and Port Clarence, Seward Peninsula was a busy place. The expedition personnel made frequent trips overland between the two places, passing through many villages including the still important Kauwerak (Kavaihazakmute). However, it is apparent that the caribou were not as plentiful as indicated in previous accounts.21 By 1897 when Lieutenant Bertholf took supplies overland during the reindeer drive for the relief of the whalers at Barrow not a village was left; only several groups of decayed huts, which his guide told him had once been occupied but "now no one lived permanently on the . . . rivers."22 The abandonment of Kauwerak, which had been of importance for at least 80 years, probably was a direct result of the disappearance of the caribou.
This was a far cry from the time that caribou came down to the sea, about which all early explorers remark: Captain Cook in 1778 on Norton Sound, Kotzebue in 1816 on Kotzebue Sound, and Beechey in 1826 at Cape Rodney and Pt. Spencer, for example.23 Commander Moore in 1850 witnessed from his ship in Kotzebue Sound the migration of numerous herds of caribou southward into the peninsula.13
Although all subsistence activities of the summer were undertaken in family groups, the winter groupings, including the trading festival, were under the control of chief men. The acknowledgment of leadership was not the invention of the writers, all of whom recognize chieftainship and chiefs of the Seward Peninsula. Some chiefs are mentioned over a span of years, and some, like Kamokin, the Kauwerak chief who had a San Francisco schooner named after him in 1866, were honored in special ways.21
Kotzebue noticed the striking differences in behavior among Eskimo men on northern Seward Peninsula. Near Cape Espenberg a number of them sat in a circle, but "two chiefs had seated themselves apart from the rest." At Goodhope Bay he remarks that he took one man to be the chief "as all his commands were punctually obeyed . . ."24
Berthold Seemann, naturalist of the ship Herald that was searching for Franklin, summed up his observations in 1853 with the remark that "every one is on a perfect level with the rest of his countrymen; yet all acknowledge an hereditary chief, whose authority however is very limited: he receives no tribute from his subjects, nor can he dispose of their labour or property: making treaties, or granting permission for hunting on the grounds belonging to his own tribe, appears to be the whole extent of his power."25 Restricted though this may sound, these powers are characteristic of any leader of a sovereign nation.
It is apparent, even from this extremely condensed discussion, that there is abundant evidence that the Seward Peninsula Eskimos are to be considered sovereign nations with extensive land holdings and intensive use, elaborate economic considerations, and leadership in the form of chieftainship. I state without hesitation that these statements pertain not only to these people specifically, but northwest Alaska generally, as a consequence of an examination of the ethnohistorical sources for the whole of the region. It is to be hoped that the Eskimo of Alaska may never again be used as the textbook example par excellence of a people at the most elemental level of political development.
Footnotes and References:
1The New York Times, May 10, 1962, p.36.
2Report of the Governor of Alaska to the Secretary of the Interior, 1918. (Washington, 1919), p.61.
3Report of the Governor of Alaska to the Secretary of the Interior, 1920. (Washington, 1920), p.32.
4Indian Affairs. (Newsletter of the Association on American Indian Affairs, Inc., New York, 1961).
5Alaska Statehood. Hearings before the Committee on Interior and Insular Affairs. United States Senate. 81st Congress. 2nd Session. Washington, D.C., April 24, 25, 26, 27, 28, and 29, 1950. (Washington, 1950), pp.254 and 328.
6The Tlingit and Haida Indians of Alaska v. The United States. U.S. Court of Claims Reports147 C. C1s. 315 (1959).
7For a discussion of individual land title and allied problems in Alaska, see Kay Hitchcock, "Natives' Land Rights in the State of Alaska" (Science in Alaska, 1960, Anchorage, Alaska, 1960).
8Report of the Governor of Alaska for the fiscal year 1891. (Washington, 1891), p.37.
9Report of the Governor of the District of Alaska to the Secretary of the Interior, 1900. (Washington, 1900), p.33.
10E.W. Hawkes, The "Inviting-In" Feast of the Alaskan Eskimo (Canada Department of Mines, Memoir 45, Ottawa, 1913), p.2.
11William H. Dall, Alaska and Its Resources (Lee and Shepard, Boston, 1870), p.268.
12Roger Wells, Jr. and John W. Kelly, Eskimo-English Vocabularies (Bureau of Education Circular of Information #2, 1890, Washington, 1890), p.9.
13T.E.L. Moore, Narrative of the Proceedings . . . of her Majesty's Ship, Plover, from Sept. 1849 to Sept. 1850 (Great Britain. Parliament. House of Commons. Sessional Papers, accounts and papers, 1851, v. 33, #97).
14Dall, op. cit., p.144.
15Otto von Kotzebue, A Voyage of Discovery, into the South Sea and Beering's Straits . . . in the years 1815-1818. (Longman, Hurst, Rees, Orme, and Brown, London, 1821), v.1, p.262.
16Herbert L. Aldrich, Arctic Alaska and Siberia (Rand, McNally & Co., New York, 1889), p.70.
17The great Eagle and Wolf dances of the elaborate trading ceremonials supposedly originated at Kauwerak. An old eagle who lived in the Kigluaik, or Sawtooth, Mountains, south of the village, directed that an unusual box drum with serrations representing the jagged peaks be manufactured to use in these dances. (Ray field notes) Apparently the last festival occurred at Mary's Igloo in January, 1914. (D.S. Neuman, Mary's Igloo Potlatch [Nome, Alaska, 1914]).
18F.W. Beechey, Narrative of a Voyage to the Pacific and Beering's Strait, 1825-1828. (London, 1831), v.2, p.568.
19Martin Sauer, An Account of a Geographical and Astronomical Expedition to the northern parts of Russia . . . in the years 1785 etc. to 1794. (T. Cadell, London, 1802).
20William R. Hobson, Proceedings of Mr. Hobson, Mate, H.M.S. Rattlesnake (Great Britain. Parliament. House of Commons. Sessional Papers, 1854-1855. Vol. 35, #1898).
21The Esquimaux (Port Clarence, Alaska, 1866-1867, volume I).
22E.P. Bertholf. Report of Lieut. E.P. Bertholf, September 1, 1898. (In Report of the Cruise of the United States Revenue Cutter Bear and the Overland Expedition for the Relief of the Whalers in the Arctic Ocean. Washington, 1899), p.110.
23James Cook, A Voyage to the Pacific Ocean. (W. and A. Strahan, London, 1784), vol. 2, p.478; and Kotzebue, op. cit. p.218; and Beechey, op. cit. pp.531 and 545.
24Kotzebue, op. cit. pp.208, 235.
25Berthold Seemann, Narrative of the Voyage of H.M.S. Herald (Reeve and Co., London, 1853), v. 2, p.60.
*NOTE: This paper was published in Science in Alaska 1962, but not as presented in these pages. It supposedly was to have been published in full, but it was so much abbreviated as to change its intent almost altogether. One of the most important points was lost sight of: that the interpretation of legal precedents concerning Indian rights, particularly land rights, in the continental United States, is applicable in every way to Alaska.