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.
SUPPLEMENTAL STATEMENT OF WILLIAM L. PAUL, SR., FOR ESKIMOS OCCUPYING THE ARCTIC SLOPE OF THE BROOKS RANGE, AND ELSEWHERE IN ALASKA (written)
My theme is "There is no Need for the Pending Legislation or for any Legislation Whatever."
The Federal position is that it holds the ultimate title to all the land purchased from Russia in 1867 burdened with a trust for and on all the land held by the Natives by "use and occupation from time immemorial" (commonly called "Indian title") when the United States acquired suzereignty from Russia, and that this trust continues until extinguished by a statute that expresses "clearly an intention to (do so)" Elk v. Wilkins 112 US 94 citing Cherokee Nation v. Georgia 5 Pet. 1 and many other citations which have greatly clarified the strength of such Indian Title, including:
the court will take judicial notice of "Indian title" Tlingit and Haida Indians v. USA 177 F. Supp. 452, 460;
the absence of a recorded adverse claim does not impair Indian title; United States as guardian of the Walapai Tribe v. Santa Fe R.R. Co. 314 US 339 (1941); Schumacher v. State of Washington, 33 L.D. 454, 456;
a grant by the sovereign does not extinguish Indian title; Chateau v. Molony 16 How. 203; Cramer v. USA 261 US 219; Butts v. Northern Pac. R.R. Co., 119 US 55; Beacher v. Weatherby 95 US 517, 525; Worcester, v. Ga.
Indian title is senior to public land laws, Holden v. Joy 17 Wall. 211 (e.g. Homesteads, mining claims, forest reservations); Worcester v. Ga.
Indian title does not depend on treaty, statute or executive orders; Cramer v. USA, supra; Walapai Indians, supra;
The absence of paper-title does not make Indian title inferior to title evidenced by paper-title; Mitchell vs. USA 9 Pet. 711, 745-747
Indian title may not be extinguished by implication; Soulard v. USA 4 Pet. 511, 512, 513;
Indian title land is "property" Mitchell v. U.S. 9 Pet. 711, 731.
II. The position of Alaska is that the grant of 103,000,000 acres in fee from Congress conditioned that it would "forever disclaim all right and title to any lands.…the right or title to which is held by the United states (altho it).…is held by the United States in trust for said natives…."P.L. 85-508, the Statehood Act of Alaska".
III. The position of the Natives is that the entire area inhabited by them from ancient times held by them by "use and occupation (commonly called "Indian title") under international law (Mitchell v. USA, supra) and that the allegation by the Governor is that the Secretary of Interior can pass full title in fee to the State notwithstanding the Act of May 17, 1884, sec. Which says in part that "the Indians…shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them…."
IV. The basic question is, Who owns the land?
By agreement of the European powers, it was agreed that the "new lands" would belong to the nation whose agent made the "discovery" and that the ownership by those in occupation would be limited in only one respect – they could not sell their lands without the approval of the sovereign. Mitchell case 9 Pet. 711.
V. Definition of "Indian Possession". When these words are used with respect to a white man’s occupation, it means "visible signs of occupation", which is quite restricted when compared by the court accepted definition of Indian possession, e.g.
"Indian possession…was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites…and as much respected…It is enough to consider it as a settled principle that their of occupancy is considered as sacred as the fee-simple of the whites." 9 Peters 711, 745 Mitchell v. USA.
This definition has not been modified since its first publication by the Supreme Court. It prevails in non-treaty case, over executive orders and grants by congress. Even the statute of limitations does not outlaw an Indian title claim because the United States is the guardian of all Indian tribal lands.
The case of United States of the Walapai Tribe vs. Santa Fe R.R. Co. (1941) is such a case for the railroad had been in occupation for sixty-one years. Nevertheless the Indian Title prevailed.
I was going to spell out the case of Beecher v. Weatherby 95 US 517, 525, in which the seniority of Indian Title over a grant by congress was at issue in which the Indian title prevailed over the grant of certain grant of school lands to the state of Wisconsin, but the case of Cramer v. USA 261 YS 219, 278, 289, 355, is wider in its scope (229). There the seniority of the Indian Title which was not based on a treaty, executive order, or statute prevailed over the congressional grant, and also, are cited decisions by the Department of Interior (which apparently that department is ignoring or evading in the current case). (See 3. L.D. 371; 6 L.D. 341; 32 L.D. 382.
In the case of Poisal v. Fitzgerald, 15 L.D. 19, the right of occupancy of an individual Indian was upheld as against an attempted homestead entry by a white man. See also State of Wisconsin 19 L.D. 518, wherein there had been granted to the State certain swamp lands within an Indian reservation but the right of Indian occupancy was upheld. In the case of Ma-Gee-See v. Johnson 30 L.D. 125, wherein Johnson had made an entry under Par. 2289, Rev. Stats. Which applied to "unappropriated public lands", the Indian in possession contested and the court decided that the land was not unappropriated within the meaning of the statute. A similar conclusion was reached in the case of Schumacher v. Sate of Washing ton 33 L.D. 454, 456.
In the grants to the States of Wisconsin and Washington, the court held that the grants only conveyed the "naked title" which in effect only means that the States had the first right to purchase, and that is also the coat which the State of Alaska must put on.
The plight of the "new-comers" can be blamed partly on the land officers in the field. Even knowing that such lands were in the occupation of Indians (see the Saxman v. Hume case, and the Sheldon homestead at Juneau) these land agents have reported that the land applied for was "unappropriated" and got away with it because the Indian didn’t know and his guardian was guilty of the sin of omission. The Court of Claims in the Tlingit and Haida case (finding 104) describes this crime better than I can; "the policy of the government was to ignore the tribal claims" etc.
In the case of the Kake Indians, three of their villages were bombarded for a series of incidents that began when the commanding general gave a bottle of whisky to a northern chief. In the Angoon case wherein the gunboat destroyed the large canoes and their winter’s food supply and poured kerosene over their community houses to help in burning them; in the Wrangell case that too began with a bottle of whisky and our houses were bombarded my mother being in one of them.
WHY NOT SENATE BILL S. 2020?
We have suppressed the causia that comes with the memory of the foregoing wrongs and so we are willing to confirm the title of these new-comers who came to Alaska innocently and would support S. 2020 (its counter-part being in the House) because it is a fair bill and would stand the test of cross-examination. IT IS IDENTICAL with the jurisdictional bill of the Tlingit and Haidas with this addition the court is given authority to ascertain what lands are still covered by our Indian Title. Even without such explicit provision, the Court made this decision, so what is there for the Governor of Alaska to oppose?
My plan does not require one penny as against an additional grant of 40,000,000 acres to the Natives and validating the 103,000,000 already granted, plus some $500,000,000.
The Interior Department can do for us what it has done for the Tyonek Indians to which it points with pride. As for the quality of the two groups, the Tyonek title is not better than the Eskimo one but it seems better because the Tyonek one is covered by an Executive Order. Why doesn’t it act? An Indian along the Copper River put it this way: "Congress will fight harder for one white man than it will for one hundred Indians."
As I look back over my years (b. 1885) I realize that much of our loss came about because we did not know our rights. We knew nothing about "adverse possession" and we thought every school teacher was sent to us by the President of the United States and so we were paralyzed when anybody told us that we had no right and we easily did nothing when a smart white man told us "This is gov’ment land". How did we lose our villages, Ketchikan, Wrangell, Petersburg, Juneau, Anchorage and many others? These were all Indian towns once and the land we owned was Indian Tribal land as the Court of Claims has now said? It is very simple. The court said (Johnson v. Pacific Coast Steamship Co. 2 Alaska 224) that Indians as individuals could quitclaim their land because the court wanted the business man to win.
These hearings are giving dignity to a sort of shell-game resembling the story of a white man and an Indian who went out hunting and upon their return, the white man said to the Indian; "I want to be entirely fair to you and so you can have your choice; you can have the turkey-buzzard and I can then have the turkey OR I can have the turkey and you can have the turkey buzzard. Each of the bills before congress has an element of this story.
Governor Hickel said if only the Natives would validate the 103,000,000 acres to which Alaska holds the "naked title"; he will ask congress to give us 40,000,000 additional acres plus $500 million. I think that $500 million will defeat the bill, but the very proposal to appropriate such a sum indicates that even our opponents concede that we have substantial rights.
The rule of law is that Indian Title is good against third parties, and so I am proposing that my clients start an action in court to eject the trespassers and then the case can go up in the regular fashion. IF our title is good, we don’t need any legislation.
As for the State of Alaska, it can tax the production as heavily as it wishes. After all, that is all that any government is entitled to.
A BIT ABOUT MYSELF
Before closing I should tell you about myself.
I was born in 1885 of American Indian parents and am a member of the Stikine Federation of Tlingit tribes and more specifically, of the Teehitton tribe so often quoted in Indian cases.
I was educated in Indian grammar schools, including that of Carlisle, Pa., Banks Business college of Philadelphia, Whitworth College of Spokane in 1909, post graduate of San Francisco Theological Seminary, ten years in business as accountant, adjuster for a big insurance company of Maryland, LL.B. from La Salle Extension University, admitted to the Bar of Alaska in 1921, that of the Court of Appeals 9th Circuit, and the U.S. Court of Claims.
I have represented my Native people before congress in 1922, 1925, 1935, 1936, 1937; helped write the Tlingit and Haida bill, got the first appropriation for relief of destitution for Alaska, integrated the public schools of Alaska, defended the flag of Alaska, the state song being an embodiment of my bill.
I herewith request that Senate bill S. 2020 be entered as an exhibit for I notice that this bill written by the Alaska Federation of Natives seems to be buried deep in other proposals whereas its place as an expression of what the Natives want should not be covered.
I heard a member of the committee say with respect to the latest bill discussed and the proposed amendments, "Why don’t you write a bill incorporating your ideas" and another member say; "And I will introduce it".
I also offer a resolution adopted by the Indian Associations supporting Bill S. 2020.
Re Training for Alaska Disadvantaged
MR. JAMES F. GROGAN,
Vice President, Education and Motivational Programs, National Alliance for Businessmen, Washington, D.C.
DEAR JIM: By the standard indicated in the long delay in getting an answer to you, I fear that no plans for progress can ever be made. I must apologize for not responding sooner. I generally react with more vigor, but enough of excuses.
Actually, there has been some progress in this area. What it has taken thus far is to convince different influentials that with NAB the disadvantaged can be helped. There are numerous proposals, from various sources, for training programs. I think we have convinced them that NAB is the only suitable solution that would satisfy industry needs and render help to the disadvantaged.
What is needed at present is training in two major fields: (1) training for the "hard core" disadvantaged Natives on the oil rich North Slope; and (2) training for unemployed, but trainable, Natives in the timber rich Southeastern (Juneau) area. Training on the Slope would be oil production related, and in Southeast, timber and pulp.
I have asked Mrs. Laurel Bland from Fairbanks to write you and give you a complete picture of the North Slope situation. I am confident she will do so. In any event, it is a real challenge; and unless something is done soon, then the abject poverty that has plagued the people there will be perpetuated for another generation. If Laurel doesn’t write, please let me know.
In the Southeastern area, which is Juneau, Sitka, and Ketchikan areas, U.S. Champion Paper Mills is soon to construct a $75 million pulp mill. The exact location of the site is not known as yet, but that is unimportant. What is important is that it will be built. I am reliably informed that, once under operation, 600 men will be employed.
The greatest impact in that area that could result would be for U.S. Champion to hire all Natives; but you and I know this will not happen. Accordingly, I designed a plan that would provide maximum participation of the rural Natives. Perhaps if you were to stop here and refer to Addendum I, you will get what I mean, understanding that what is contained therein is assuming that objectives are reached successfully. Before continuing then, please read Addendum I.
As you can see, the memo to Messrs. Stitt and Austin is speculative and is written as if it had been firmed up. We are currently negotiating with Champion to convince them that this approach, which is geared to the rural economy only, will work.
You have to understand that in rural Alaska it costs less to live; so although the 600 men would not be earning maximum salaries under the normal plan, they would be guaranteed an income. Moreover, it will not "wreck" the predominant fishing industry. This plan will work to the advantage of the Natives rather than to their disadvantage. The impact will be tremendous and will serve to lift 600 families off of welfare rolls. It will work, and we will make it work. All we need is the training, with which NAB can be of major assistance.
Would you advise as to whether or not NAB would be receptive to a training program for Southeast, at Sitka (Mt. Edgecumbe), and, if so, to what extent? If we can gain some kind of firm commitment from NAB, we would be better situated to meet with Champion officials and sell the idea to them.
It is important that we be as discreet as possible. The reasons are many; and when Mr. Richard Stitt comes to Washington, I will have him meet with you and explain this further. Also, I need your cooperation to give champion maximum publicity once the plan has been developed and ready for implementation.
In any case, this is a partial outlook at present. As regards to reimbursement, my contact men in Juneau are aware of it, and you should be hearing from them in due course. If I can answer any questions in the meanwhile, please feel free to write or call.
Project Director (EEOC).
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.