[excerpted from Polar Peoples]

3

THE ALASKA NATIVES

by Fae L. Korsmo

From Polar Peoples: Self-Determination and Development, "The Alaska Natives," by Fae L. Korsmo, pp. 81-104, edited by Minority Rights Group, 1994. Used with permission of the publisher, for educational purposes only.

CONTENTS

Introduction

Russian America, 1741-1867

Alaska Native languages

Early US administration and aboriginal rights

Retribalization, reservations and statehood

The Alaska Native Claims Settlement Act

Powers of tribes: Indian Country, sovereignty and Alaska Natives

The ‘1991’ amendments

Subsistence

Self-determination, tribes and Indian Country

Conclusion

Bibliography

 

Introduction

From the moist coastal climate of the southeast panhandle, with its towering cedar trees, to the bare, windswept tundra, Alaska hosts a diversity of cultures. Long before Russian explorers plied the coasts in the 1700s, the forebears of the Alaska Natives had established themselves as distinct societies. The term ‘Alaska Natives’ encompasses the Yupik, Inupiat, Aleut, Athabaskan, Tlingit, Haida and Tsimshian peoples. Together, they constitute just over 15 percent of the state’s population, or more than 85,000 people out of approximately 550,000 statewide.1 They speak twenty different languages.2 Fifty-six per cent of the Alaska Natives are concentrated in non-urban areas, including more than 200 small villages with populations smaller than 2,500.3 However, the state’s most populous city, Anchorage is home to more than 14,000 Native people.4 Alaska Natives can be found in a variety of occupations and ways of life, from subsistence hunting and fishing to state and corporate office. Despite the cultural, linguistic, occupational and geographical differences, the Alaska Natives have shared similar challenges as a result of colonization and pressures to assimilate to the dominant culture. Perhaps the most pressing concerns of the Alaska Natives today involve self-government and tribal jurisdiction over land and water, in addition to health and social problems such as alcohol abuse, suicide, unemployment, housing and sanitation.5

This chapter will give a brief overview of the controversies and recent developments surrounding Alaska Native rights, beginning with the history of contact between Alaska Natives and first the Russians and then, after 1867, the United States. After the historical treatment, we shall turn to the issues of subsistence, tribal sovereignty and future prospects. Space does not permit more than a few details about the separate and distinct Native cultures in Alaska, or more than a cursory glance at the complex evolution of US policies. Throughout the chapter, however, a single theme emerges: Alaska Natives are neither the passive victims of aggressive colonization nor the single most important arbiters of their own lives, but independent actors who are nevertheless subject to powerful economic and political forces beyond their control. The recognition of Alaska Native rights evolves and shifts accordingly in the ever-changing context of minority-majority relations.

[insert map, p. 82]

Russian America, 1741-1867

When Vitus Bering and Alexii Chirikov and their crews landed on the Alaskan coast in 1741, they opened the way for more than a century of Russian fur trade. Russia extended its empire to Alaska as part of the sweep across Siberia. Whereas peasants were brought to till the soil and colonize Siberia, in addition to hunters and trappers of fur-bearing mammals such as sable, farming made little headway in Alaska. Few Russians actually settled in Alaska. Instead, the sea otter became the main object of the Russian hunter-traders (promyshlenniki) who stayed long enough to accumulate their bounty. The Russians forced the Aleuts to hunt sea otters and fur seals for them, taking advantage of the expertise and equipment the Aleuts had developed over thousands of years of living in their marine environment. As a result of the harsh treatment as well as new diseases brought from the European continent, the Aleut population declined by at least 80 per cent during the first and second generations of Russian contact.6

Along with population loss came culture change. Because Russian settlement was largely confined to the coasts and the mouths of major rivers, not all Alaska Native groups experienced daily contact with the newcomers. Who were these different peoples the Russians encountered? How were they treated?

The Aleuts experienced the longest and most intensive history of non-Native contact.7 Prior to contact, the Aleuts lived in villages and seasonal subsistence camps along the coasts of the Aleutian Islands. Food sources included marine mammals, marine invertebrates, eggs, birds, fish and plants. Villages consisted of multi-family semi-subterranean dwellings, or barabaras, made of stones, driftwood and whalebone. With their water-repellent clothing made of gut and their sturdy canoes or bidarkas, the Aleuts were well adapted to the marine climate, When forced into Russian service, the male Aleut hunters were often taken from their homes and families, leaving the women and children to fish and gather. Settlement patterns were broken. and some Aleuts were relocated to other islands such as the Pribilofs. In addition, Russian Orthodoxy replaced traditional spiritual beliefs and rituals associated with the hunting and gathering life.

Other coastal peoples affected by Russian contact included the Koniag of Kodiak Island, the Yupik of southwest Alaska, the Kenaitze of the Kenai Peninsula, the Chugach, and the Tlingit in southeast Alaska. The Koniag numbered 10,000 or more at the time of Russian contact. Archaeological evidence reveals a complex society based on extended families (again we see the multi-family dwellings, housing perhaps 18 to 20 people), ritual observances centred around spiritual transformations and a fisher-hunter-gatherer economy where the salmon played an important part.8 Linguistically related to the Koniag, the Yupik of the Yukon-Kuskokwim delta first encountered Russian explorers and missionaries in the early 1800s.9 The Yupik may have numbered as many as 15,000 at the time of Russian contact, spread out in villages along the delta. Rich in fish, including salmon, whitefish and trout, the rivers and streams braided through territory that supported abundant game — moose and caribou as well as smaller mammals like otter, muskrat, fox and mink. People followed the movements of fish and game, with extended families occupying fishing camps along the rivers during the summer and larger, more permanent villages during the winter.10

To the south and east, the Russians attempted to gain a foothold in Tlingit territory, using Koniag and Chugach men as hunters and warriors to raid the Tlingit villages in the late 1700s. The Tlingit were trading with the British and initially fought the Russians.11 The northernmost of the northwest coast peoples who built large wooden houses, totem poles and dugout canoes, the Tlingit were known as skilful warriors and traders who gave away their many luxuries at elaborate ceremonials called potlatches.12 They temporarily succeeded in expelling the Russians, but after 1804 it appeared the Russians were determined to maintain a settlement at Sitka. The Tlingit simply went on with their lives and tolerated the Russian presence.

People living in the far north and interior regions of Alaska saw far less of the Russians than the coastal and riverine groups, simply because these areas were inaccessible or undesirable from the Russian perspective.13 For the Inupiat and Athabaskan peoples living in north and interior Alaska, contact with the Russians was predominantly indirect; trade with other Native groups further south brought Russian goods into their hands, but Russia established no settlements.14According to Kostlivtsev, commissioned by the Russian government to investigate property rights in Russian America in 1860:

‘the further from the coast, the more rough and independent the character of the savages; every symptom not only of social, but even of settled life, disappears, because these natives, having no other occupation but hunting, migrate in the track of game from one part to another, establishing but provisional settlements for the winter season.’15'

Kostlivtsev may have been describing the Athabaskans, hunter-fisher-gatherers of the northern forest. Northern Athabaskan groups can be found across both Alaska and Canada. They were extremely mobile, and their temporary and semi-permanent dwellings reflected their seasonal movements according to wildlife migrations and weather patterns.16 While the Russians dismissed them as savages, the Athabaskans had elaborate kinship networks and powerful tribal chiefs or councils comprising a rather complex political system. The same could be said of the Inupiat, who in general were more oriented towards the north coast and depended on the sea-mammal harvest. The most important early contact with the Inupiat, in fact, was made not by the Russians but by whaling ships from New England and California which followed the bowhead whale along the north Alaskan coast and across the ocean to the western Chukchi Sea during the middle 1800s.17

Russian presence, then, had varying impacts on Alaska Natives, ranging from the virtual enslavement of the Aleuts to little or no interest in the more remote groups of Athabaskans and Inupiat. Given the mistreatment of Aleuts and other coastal societies, it seems incongruous that Russians accepted Creoles, or people of combined Native and Russian heritage, as Russian subjects and devoted considerable energy to teaching and preserving the Aleut language.18 Perhaps an explanation lies in the inclusive form of colonialism the Russians practised, whereby local leaders willing to cooperate were co-opted and their followers integrated into Russian society.19

The 1844 Charter of the Russian-American Company, the fur-trading monopoly established as a hybrid governmental and economic concern in Alaska, recognized three categories of Natives. First, the dependent or settled tribes were considered Russian subjects, and these probably included the Aleuts, Koniag, Kenaitze and Chugach. Second, the not wholly dependent tribes lived within the reach of Russian settlement, but did not enjoy the duties or privileges of Russian settlement. The second category most likely referred to the Tlingit, who resisted the Russians. Third, the independent tribes (further north and inland, such as the Athabaskans and Inupiat) had little interaction with the Russians.20

The Russian classification system became an important source of knowledge for the United States when the latter purchased Alaska from Russia in 1867. It is hardly surprising that neither Russia nor the United States consulted the societies living in Alaska before making this transaction. To this day, some Alaska Natives refer to 1867 as the year that ‘the occupation rights’ to Alaska were transferred; Russia never had legitimate possession of Alaska, so how could Russia sell something it did not own?21 In any case, the Treaty of Cession between Russia and the United States recognized three groups of Alaskan people: (1) Russian subjects who preferred to retain their allegiance and were permitted to return to Russia within three years; (2) Russian subjects who preferred to remain in Alaska and enjoy the rights and immunities of US citizens; and (3) the uncivilized tribes who would 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.’22

But these categories did not translate directly into US law. Who were US citizens? Prior to 1924, Native Americans could become citizens of the United States only on the condition that they applied for an allotment of land and gave up their tribal ways. Were the children of Russian fathers and Alaska Native mothers US citizens or members of ‘uncivilized’ tribes? Were Alaska Native societies ‘tribes’ under federal law?

 

Alaska Native languages

Language family

Language

Eskimo-Aleut

Aleut

 

Alutiiq

 

Central Yupik

 

Siberian Yupik

 

Inupiaq

   

Tsimshian

Tsimshian

   

Haida

Haida

   

Athabaskan-Eyak-Tlingit

Tlingit

 

Eyak

 

Ahtna

 

Tanaina

 

Ingalik

 

Holikachuk

 

Koyukon

 

Upper Kuskokwim

 

Tanana

 

Tanacross

 

Upper Tanana

 

Han

 

Kutchin

 

Early US administration and aboriginal rights

Immediately after the 1867 Treaty of Cession, the United States occupied Alaska militarily, using both the army and the navy. The 1884 Organic Act ended military rule in Alaska and made Alaska a customs district governed by several federal officials. The Second Organic Act of 1912 made Alaska into a territory of the United States and provided for a legislature.23

With regard to Native rights, US rule consisted of a mixture of neglect, assimilation and segregation. Schools were segregated. During the first twenty years following the Treaty of Cession, the United States made no provision for education; instead mission societies provided education. From 1885, the US government began to establish state schools and contracted with the missionaries to continue to provide education. Around the turn of the century, however, a dual system of education was inaugurated. Under the governor of the District (and subsequently Territory) of Alaska, schools were established for ‘White children and children of mixed blood leading a civilized life.’ Native schools, however, were under the jurisdiction of the federal government.

Segregation also existed in the realm of political participation. In 1925, the Alaska territorial legislature enacted a literacy law, requiring that voters be able to read and write the English language. Similar laws in other parts of the United States were designed to keep minorities from voting, and the same motivations were present in Alaska.24

Policy concerning Alaska Natives’ rights to land and water was marked by neglect and, whenever a conflict arose between Native and non-Native, a confusion of two approaches: assimilation and aboriginal rights of possession. The 1884 Organic Act had provided that ‘Indians or other persons in said district [Alaska] shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them, but the terms under which such persons may acquire title to such lands are reserved for future legislation by Congress.’25 However, on what basis did the Alaska Natives possess title to their lands? Was it aboriginal title or did the Natives and non-Native settlers possess equal rights to landownership? The courts said yes to both. In the first instance, Alaska Natives were legally equivalent to Native American tribes and held land in common based on aboriginal occupancy.26 In other words, Alaska Natives held separate but not inferior systems of land tenure, and these systems had their own internal validity independent of recognition by a European power. Once the discovering nation established a foothold, though, the power of the Natives to sell their lands to anyone else but the discovering nation was curtailed. Thus, when the United States signed the Treaty of Cession, Congress assumed the ultimate power to extinguish aboriginal title and dispose of Native lands. The Alaska Natives still had the right to possess those lands, however.27

In the second instance, the courts determined that Alaska Natives held individual rights equivalent to those of white, non-Native settlers who came to homestead.28 This approach was in tune with the assimilationist policy favoured by the United States during the late 1800s and early 1900s. The purchase of Alaska from Russia and its territorial incorporation occurred concomitantly with the selling of Indian reservation lands in the rest of the United States and the accompanying efforts to make Indians into farmers. The General Allotment Act (also known as the Dawes Act) of 1887 divided tribal property into individual allotments, sold the ‘surplus’ Indian lands and provided for citizenship to be conferred on Indians who abandoned their tribes, took up the plough and adopted the habits of civilized life.29 Congress passed a separate allotment act for Alaska in 1906, even though there was very little reservation land to break up. In fact, the small reservations that the US government did establish in Alaska during the early years were primarily for schools, hospitals and reindeer herding. They represented the efforts of the US Commissioner of Education and his agent, Sheldon Jackson, to provide tools for self-sufficiency and a settled, civilized life, not a means to reaffirm and strengthen Alaska Native cultures.30

These reservations were designed to aid the transition from a hunter-gatherer existence to a cash economy through vocational training, the establishment of reindeer herding and the protection of fisheries.31

The question, then, of whether the Alaska Natives possessed collective aboriginal title (as had the Native American tribes of more southerly regions before they signed treaties with the United States), or whether they held individual rights equivalent to non-Native homesteaders, remained unresolved and confused, often decided in favour of more powerful interests, such as the fisheries and-mining industries.

Retribalization, reservations and statehood

During the 1930s, the United States turned away from the allotment policy. The Dawes Act had failed to assimilate Native Americans or to eliminate the tribe as a fundamental unit. Instead, the land losses and dislocations resulting from the policy seemed to exacerbate problems of poverty. The new policy under the- Roosevelt administration, then, recommitted the United States to maintaining tribal identity. The Indian Reorganization Act (IRA) of 1934 repealed allotment, appropriated funds for the purchase of lands for landless Native Americans, set up a credit fund for loans and authorized tribal organization and incorporation. Tribes had the right to adopt constitutions, employ legal counsel, protect tribal lands and negotiate with federal and state governments. They also acquired the right to own, manage and dispose of property. Two years later, the policy was extended to Alaska in the Alaska Reorganization Act of 1936.32

US Secretary Harold Ickes gave three reasons for establishing Alaska Native reservations. First, they would define Native groups as tribes. Second, they would stipulate the geographic limits of tribal jurisdictions. Third, they would allow the United States to protect the economic rights of the Natives against outside commercial interests.33As a result of the Alaska Reorganization Act, 69 villages chose to reorganize their form of government and adopt the constitutions recommended by the provisions of the Indian Reorganization Act. In addition, six villages established ‘IRA’ reservations.34

Why so few reservations in Alaska? Opposition to reservations came from several sources. First, commercial fishing and cannery companies opposed any reservations that would limit their access to rivers and coastlines. Second, politicians, including the territorial governor of Alaska Ernest Gruening, opposed segregating Alaska Natives and equated reservations with powerlessness, poverty and subsistence. Third, in some cases the Natives themselves voted down proposed reservations. For example, the Inupiat of Barrow and Shungnak voted against establishing reservations, reportedly because they thought a reservation would not encompass a large enough area for hunting and fishing.35

In the United States as a whole, the policy to encourage the maintenance of tribal identity was short-lived. It was replaced by ‘termination,’ or several legislative acts authorizing the cessation of a special federal-tribal relationship for specific tribes and the removal of responsibility in Native American affairs from the federal to the state level. For example, Public Law 280 transferred civil and criminal jurisdiction over Native Americans from the tribes to the states; the states also assumed many educational responsibilities formerly carried out by the tribes and the federal government.36 In Alaska, the campaign for statehood after the Second World War coincided with the termination era in federal Indian policy. For those interested in the economic and political success of the new State of Alaska, reservations and the federal-Indian trust relationship seemed like obstacles to the development of resources and the collection of tax revenues.37 After considering various options for statehood, including the revocation of Native reservations in Alaska and the transfer of practically all lands to the new state, Congress passed a bill that would grant 103.5 million acres, or nearly one-third of Alaska’s territory, to the new state. Thus, when Alaska became a state in January 1959, it had the power to acquire a great deal of land, including land still claimed by Alaska Natives.

The Alaska Native Claims Settlement Act

During and after the Second World War, Alaska experienced a construction boom, and the territory’s population nearly doubled, mostly as the result of in-migration. Alaska Natives constituted 45 per cent of the territory’s population in 1940; by 1950 they were only 26 per cent.38 Increased population meant higher demands on resources. More importantly, however, the strategic importance of Alaska in the Cold War and the newly achieved statehood made both the state and federal governments powerful contenders for Alaska’s land and water. The federal Atomic Energy Commission (AEC), for example, proposed to use a nuclear explosive to blast an artificial harbour at Cape Thompson on Alaska’s northwest coast. In 1958, the AEC requested 1,600 square miles of land and water for the proposed explosion. The village of Point Hope voted against the project and wrote a letter of protest to President John F. Kennedy. Eventually the plans were abandoned. Similarly, the state proposed to acquire as part of its 103.5 million acres of land an area near the Athabaskan village of Minto, not only for a recreation site but also with future oil development in mind. Minto and other nearby villages protested the state’s plan.39 The village of Minto filed a counter-claim to the land and water they had occupied for many generations. In fact, villages all over Alaska began filing claims with the US Department of the Interior.

Increased competition for Native land and water not only sparked local resistance but helped to mobilize the Alaska Natives on a regional basis. In 1966, these regional Native associations met and formed a statewide organization which would become known as the Alaska Federation of Natives. In addition, the Native villages and associations across Alaska filed claims covering the entire state in an effort to block the State of Alaska from acquiring land and water the Alaska Natives had never ceded.40 The US Secretary of the Interior, Stewart Udall, responded by stopping the transfer of public lands to the state until Congress could settle the Alaska Native claims. Congress was just starting to look at the issues when significant oil reserves were discovered on the North Slope of the Brooks Range. The oil companies wanted to build a pipeline to the port of Valdez to transport the oil out of Alaska, but Native claims held up their plans. Because the economic stakes were so high, Congress acted rather quickly to open up negotiations with the oil companies, Alaska Natives, environmental groups and the State of Alaska.

The result, the Alaska Native Claims Settlement Act (ANCSA) of 1971, created twelve regional for-profit corporations that would have title to the surface area and subsurface minerals of land selected for development across the state up to a total of 18 million hectares (44 million acres) statewide. Villages in each region could also create their own corporations, and the village corporations would retain surface title to local lands as part of the settlement. Monetary compensation for lands given up by the Natives would total $962.5 million, about half from funds supplied by Congress and half from mineral revenues collected on state and federal lands. On the surface, the ANCSA seemed like a generous settlement, one that embraced the need to modernize economically yet empowered the Natives to do so themselves and on their own terms. As time went on, however, it became clear that the settlement was not at all ‘a settlement’ but rather left several questions unresolved.

First, the settlement was a transitional mechanism that provided a 20-year period during which stock in the Native corporations, both regional and village, could be held only by the Alaska Natives. After that 20-year period, however, the restricted stock would be replaced by at-large shares on the open market. If non-Natives bought up the corporate stock in 1991, they would then acquire title to Native lands, for the corporations were the entities that held the title. The Alaska Natives would not only lose control over the corporations, but they would also lose their land. The year 1991, then, loomed large.

Second, Congress postponed the issue of subsistence. The settlement act extinguished aboriginal rights to hunt and fish, with the implicit assumption that subsistence practices would decline as Natives moved into the modern cash economy. At the time of the settlement, the State of Alaska promised to provide for Native subsistence needs in state fish and wildlife regulation. 'The State of Alaska has not recognized any Native right to hunt, fish and gather, however, and the regulation of fish and game has been riddled with controversy. Additionally, contrary to the assumption that they would move away from subsistence, Alaska Natives continue to practise a mixed economy, where wage earning provides cash for subsistence hunting and fishing technology: boats, rifles and snow machines. Subsistence is not merely a means to survive in the Arctic and sub-Arctic, but also a way of life. Identity, self-worth and life itself for the Alaska Natives are inextricably linked with subsistence activities.42

Third, the status of Alaska Native villages as legal and political entities and the existence of Indian Country in Alaska remain subject to dispute. ‘Indian Country,’ or the territory over which tribes exercise jurisdiction, and tribal sovereignty, or the domestic dependent sovereignty described by Chief Justice Marshall, are issues that continue to surface in the courts. Before we consider subsistence, the ANCSA corporations, Indian Country or village status, however, we must turn to those very doctrines of federal Indian law which have engendered such controversy: aboriginal title and tribal sovereignty.

Powers of tribes: Indian Country, sovereignty and Alaska Natives

As the legal basis for Alaska Native claims prior to the ANCSA, aboriginal title is one of the ways Indian tribes have acquired property held in common. Enshrined in early US Supreme Court decisions from the early 1800s written by Chief Justice John Marshall, one of the most famous Supreme Court Justices to articulate the principles of federal Indian law, the doctrine holds that American Indian tribes have separate but not inferior systems of land tenure. Certain limitations were imposed on the powers of the tribes to cede lands to others, however, when the European powers began treating with the tribes. Through the principle of ‘discovery’ the Europeans divided up the right to enter into relations with the native inhabitants of the country discovered. Each European power gained the exclusive right to acquire land from the Indian tribes within their respective spheres of influence. Until the European power actually purchased Indian lands, the tribe still possessed those lands as the rightful occupants.43

In addition to land title, Chief Justice Marshall ruled on the legal and political status of tribes in relation to the state and federal governments. The doctrine of tribal sovereignty arises out of the treaty relationships between the Indian tribes of North America and Great Britain (later the United States). For example, the Cherokee signed a treaty in 1791 ceding certain lands to the United States, and the United States in turn guaranteed other lands to the Cherokee, lands that happened to be within the boundaries of the State of Georgia. But the State of Georgia demanded that the United States extinguish Indian title and remove the Indians from the state. When the federal government did not respond, Georgia extended its laws to Cherokee territory, despite the fact that the Cherokee Nation had its own constitution and legal system. The Cherokee took the case to court, and in this as well as related cases involving the Cherokee, Chief Justice Marshall ruled that the Cherokee Nation had the status of domestic dependent nations; within the lands they possessed, they retained sovereign powers of self-government. With respect to external diplomacy, however, the Cherokee had by treaty given up their powers to establish relations with other nations to the federal government of the United States. State governments could not assume jurisdiction within Indian reservations, then, but the federal government could limit the activities of Indian Nations beyond the boundaries of Indian Country.44

Powers of Indian tribes include the ability to determine the form of tribal government and tribal membership; the power to legislate, including the power to levy taxes, establish schools and control economic activity; the power to administer justice and exclude persons from tribal territory; and certain powers over non-Indians, except in criminal matters.45 This ‘domestic dependent sovereignty’ assumes that a distinct territory exists, such as a reservation, over which the tribal government can exercise its power. Furthermore, jurisdiction is related to possession, a trait of Anglo-American law; the sovereign holds title to the land under its administration.

Chief Justice Marshall, in his Supreme Court decisions, characterized the relationship between the federal government of the United States and the Indian tribes as that of a guardian and ward. The stronger nation, the United States, protected the weaker nation, and in return, the tribe necessarily gave up some of its sovereignty. This ‘trust’ relationship between two governments implies that the United States has a continuing duty to protect tribal resources and act in the tribes’ best interest. Here enters a paradox: tribes have the power to govern themselves, yet the federal government has established itself as a paternalistic protector.

What are the implications of this paradox for the Alaska Natives? Do Alaska Native villages constitute federally recognized ‘tribes’ or do the unique circumstances of Alaska make the Natives an exception to federal Indian law?

The State of Alaska has argued that the Alaskan situation is indeed unique compared to the history of the Indian tribes in the contiguous states.46 According to the state’s argument, Congress generally intended Alaska Natives to be governed by the same federal laws applicable to all other residents of Alaska, at least until 1936. Furthermore, the state points out that Congress never signed treaties with Alaska Natives, never regarded them as anything more than dependent subjects. The brief interlude of creating reservations according to the Alaska Reorganization Act of 1936 was merely an administrative attempt to settle Alaska Native claims and, because of the opposition it engendered, was not fully applied to all Alaska Natives. Within this argument put forth by the State of Alaska, the Alaska Native Claims Settlement Act merely continued the federal policy of treating Alaska Natives as individuals rather than tribes. The state relies on three features of the ANCSA to support this claim. First, the Native corporations would hold land in fee simple title rather than tribal reservations. (‘Fee simple title’ means that the owner can sell or otherwise alienate the land, while reservation land has been set aside by the federal government for tribes and cannot be sold to or settled by outsiders. The United States holds reservation lands in trust for the tribes, while the tribes exercise their rights of self-government on the lands.) Second, as part of the settlement act, Congress encouraged Alaska Native villages to form municipal, or city, governments. These municipalities would be instruments of the State of Alaska and would therefore lack the capacity to form a government-to-government relationship to the United States. Third, the ANCSA shielded undeveloped Native lands from taxation for twenty years. According to federal Indian law, Indian Country is not subject to taxation. Therefore, Congress could not have considered Native corporation lands to be Indian Country.

The State of Alaska, then, has argued against special Native rights based on the tribal model of Indian Country and domestic dependent sovereignty. Because of the shifts in federal Indian policy, and the ambiguity of US policies concerning Alaska Natives, the state’s position is not entirely unfounded. However, as the following three sections on ANCSA amendments, subsistence and tribal status show, the state’s argument has not always prevailed.

The ‘1991’ amendments

During the 1980s, a highly charged debate took place about the viability of the regional and village corporations created under the ANCSA. By 1981, ten years after the settlement, the Native corporations had received less than half of the land allocated to them. The regional corporations had only marginal profits, with at least one in danger of failing.47 Furthermore, the ANCSA required the automatic cancellation of restricted stock in December 1991 and its replacement with ordinary stock. This would give the Native shareholders the option to sell their shares. If enough Natives sold their shares to non-Natives, they would lose control over the corporations. In turn, the loss of corporate control meant loss of the land. Because few of the corporations were successful, the danger loomed that non-Native interests would be in a position to take control of the corporations and the land.

Efforts to amend the ANCSA to eliminate this danger took place on two levels. First, the Alaska Federation of Natives and Native corporate leaders sponsored conferences and workshops to gather ideas on how to amend the ANCSA to protect Native ownership and control. Second, village leaders and the Inuit Circumpolar Conference investigated alternative forms of land tenure that would guarantee Native rights to land and water for generations to come. Specifically, the Inuit Circumpolar Conference commissioned Thomas Berger, a respected advocate of Native rights and a former judge on the British Columbia Supreme Court, to visit Alaska Native villages and gather the views of Alaska Natives. After gathering volumes of testimony, Berger observed:

'Alaska Natives wish to choose a form of landholding that reflects their own cultural imperatives and ensures that their ancestral lands will remain in their possession and under governance . . . At every hearing, witnesses talk of the corporations, shares, profits, sometimes even of proxies, but then, emerging from this thicket of corporate vocabulary, they will talk of what they consider of most importance to them — land, subsistence, and the future of the villages.’48

Berger concluded that the corporate form of land tenure, with its risk-filled profit-making imperative, did not accommodate the aspirations of the village people to hold on to tribal lands. Instead, he recommended that Native shareholders concerned about land loss vote to transfer land from the village corporations to the tribal governments. If a minority of shareholders voted against the transfer, however, they could exercise their dissenters’ rights and exact compensation. Berger suggested Congress enact legislation to facilitate the transfer of land by the village corporations to tribal governments without regard for dissenters’ rights.49 Alaska Native associations concerned with village government, such as the United Tribes of Alaska and the Alaska Native Coalition, lobbied for such legislation.

The Alaska Federation of Natives (AFN), its leadership dominated by the regional corporations, did not support the transfer of lands to tribal governments. Rather, it proposed extending the stock restrictions indefinitely, reserving the option for each corporation to permit stock alienation, subject to shareholder vote. In an effort to create a united front, AFN leaders and tribal advocates forged a compromise with tribal government leaders and included in their proposal an option to transfer land and assets to other Native entities (such as trusts or non-profit corporations) without the burden of dissenters’ rights.50

Congress did not approve the land transfer provision, but did agree to extend the stock restrictions and keep the corporations in Native hands, unless the corporations themselves opted to sell shares.51 Thus, with the so-called ‘1991’ amendments (passed in 1988), the Alaska Natives could at least be assured of continued control over the corporations. Other amendments to the corporate provisions of the ANCSA were less satisfactory. For example, the original legislation failed to provide for Alaska Natives born after December 1971. These ‘new Natives’ or so-called after-borns were not assigned shares of stock in the village or regional corporations and therefore had no legal ties to the land unless they inherited stock. Over the generations, the inherited stock would be divided and redivided, eventually worth very little. The amendments to the ANCSA passed in 1988 allowed each corporation to issue stock to the new Natives if that corporation so desired. Of course, if the corporation decided to issue new shares, this would dilute the value of existing shares. It is not surprising that the few regional corporations that voted to issue new shares were among the most financially sound and thus able to extend the sphere of shareholders.52 While it may seem a minor problem, the option to distribute shares to Natives born after December 1971 demonstrates the inadequacy of the ANCSA as legislation defining Alaska Native rights. Differences between corporations can result in disparate treatment of Native people.53 For all its complexity, the ANCSA remains a land settlement rather than the last word on the status of Alaska Natives.

Subsistence

Although the ANCSA extinguished aboriginal hunting and fishing rights, Congress urged the State of Alaska and the US Secretary of the Interior to protect the subsistence needs of Alaska’s indigenous peoples.54 The Alaska Natives became increasingly alarmed at the prospect of losing subsistence rights, especially since more and more people were moving to Alaska during and after construction of the oil pipeline, and the State of Alaska was doing little to adjust for the increased pressure on natural resources. In the late 1970s they lobbied both the state and federal governments for subsistence protection. Anticipating congressional action on the matter, Alaska adopted a subsistence law in 1978, providing a preference for customary and traditional use of fish and game. ‘Customary and traditional’ referred to historical uses of fish and animals for food, shelter, fuel, clothing, tools and transportation, implying a continuous dependence on the resources over time.

The federal government’s subsistence law came in the form of Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) of 1980. The ANILCA set aside public lands in Alaska for national parks, forests, refuges and wilderness preservation. The subsistence provisions of Title VIII recognized the priority of rural residents, both Native and non-Native, who depended on local resources. When the populations of fish and wildlife species reached levels that could not be sustained, sport and commercial harvests would be curtailed, while the subsistence users would be able to meet their needs. If the suspension of sport and/or commercial uses were not sufficient to sustain the species, then reduced subsistence harvests could be allocated among subsistence users, subject to three criteria: (1) customary and direct dependence on the species as the mainstay of livelihood, (2) local residency and (3) availability of alternative resources. Subsistence uses are defined in the ANILCA as ‘customary and traditional uses by rural Alaskans of wild fish and game for personal or family consumption, barter, or customary trade.’55

The state had one year after the passage of the ANILCA to enact and implement laws and regulations on subsistence; if the state did not act, then the federal government would assume management. The state did adopt the rural subsistence priority, but not without a great deal of controversy. For example, the state’s definition of a rural area as ‘a community or area of the state in which the noncommercial, customary, and traditional use of fish or game for personal or family consumption is a principal characteristic of the economy of the community or area’ came under fire from the Kenaitze Indians of the Kenai Peninsula. According to the state’s definition of rural, the Kenai communities did not qualify for subsistence priority. The Kenaitze filed suit, challenging the state’s definition, and a federal court ruled that population size, rather than the economic characteristics of a community, was a more appropriate definition of ‘rural.’ The court concluded that the State of Alaska was attempting ‘to take away what Congress has given, adopting a creative redefinition of the word rural, a redefinition whose transparent purpose is to protect commercial and sport fishing interests.’56

The Kenaitze case was only one sign of disagreement over subsistence. The next major challenge came from urban dwellers, including two Alaska Natives who lived in Anchorage. They objected to the geographical requirement, claiming that individual need rather than place of residence should determine subsistence preference. Since a large portion of the Alaska Native population live in non-urban areas, the rural subsistence priority benefited them. But what about urban Natives? The McDowell lawsuit pointed up the imperfect fit between a rural preference and a Native preference; neither Congress nor the State of Alaska was willing to adopt the latter option. In its decision, the Alaska Supreme Court ruled that the state subsistence statute unfairly discriminated against the urban population and violated Article VIII of the Alaska Constitution, which states that the fish and wildlife resources must be reserved for the common use of all Alaskans, that subsistence laws could not create an exclusive right or special privilege of fishery, and that state laws must apply to all persons similarly situated. The court decision against a rural subsistence priority threw the state out of compliance with the ANILCA.57 While the federal government still uses the rural criterion for subsistence hunting and fishing on federal lands, the state recognizes all Alaska residents as potential subsistence users.

The implications for Alaska Native rights are troubling. To assert their resource rights, Alaska Natives are pursuing a variety of strategies. These include (1) efforts to amend the state’s Constitution to provide for a rural subsistence priority; (2) closing Native corporation lands to prohibit trespass by non-shareholders; (3) contracting as tribal entities with federal subsistence managers; (4) expanding the tribal government’s role in regulating hunting and fishing; and (5) arguing for the inclusion of indigenous customs and traditions in both state and federal regulation.58 Currently several Native organizations, including the Alaska Federation of Natives and the Alaska Inter-Tribal Council, are asking the federal government to assume control of fishing regulation on major rivers in Alaska.59 At the time of this writing, navigable waters are subject to state control. In the autumn of 1993, the state closed subsistence fishing on the Yukon River and its tributaries because of a low run of chum salmon. Natives protested vigorously, fished for chum illegally and argued that the low numbers of salmon were caused by heavy commercial fishing off the coast of the Alaska Peninsula. The Alaska Natives argue that the federal take-over of fishing regulation is necessary to ensure subsistence rights promised in Title VIII of the ANILCA.60 In addition, the Alaska Natives will continue to press for an amendment to the state’s Constitution to allow a subsistence preference.

At stake in the subsistence battle are not only competing interests (commercial, recreational and subsistence users), but competing ideologies. Natives who define subsistence as essential to cultural survival invite the scorn of a non-Native who supplements the family diet with salmon and caribou. The urban dweller who charters a plane out to western Alaska and leaves fish parts lying around the river banks is seen as a disrespectful and dangerous invader by a Native villager. There is more to the controversy than who gets what. Western biologists seek to limit the harvest to ensure sustainable yield, while Native villagers may be more focused on preventing waste.61

Some advocates of Native rights maintain that the best solution is ultimately local control over resources. Indian tribes enjoy the exclusive right to hunt and fish on land and water reserved to them, while off-reservation rights are usually negotiated through treaties or congressional legislation. In Alaska, however, the status of Indian Country remains subject to dispute.

Self-determination, tribes and Indian Country

The debate over tribal status for Alaska Native villages involves more than legal niceties. Whether the villages have the right to determine their own membership, levy taxes, operate their own schools, regulate hunting and fishing, administer their own separate justice systems or adopt and enforce their own legal codes depends on the extent to which they are recognized as tribes. Of course, there are other options; one of the strongest local governments in Alaska is the North Slope Borough, effectively a Native government. This entity, a regional government formed in 1972, has the power to tax, to regulate energy exploration and development, to govern the school system and to have decision-making powers in fish and wildlife management.62 Another Native-controlled borough, the Northwest Arctic Borough, has exercised important powers of taxation and economic regulation. But Native dominance of these regional governments depends entirely on maintaining a majority population in the region. A tribal government, on the other hand, can limit membership and participation to Native people, even if they have left the village for employment in a larger city. In 1990, 41,380 or 48.3 per cent of all Alaska Natives lived in areas where Natives made up more than half the population, a decline from 54.5 per cent in 1980.63 Congress encouraged Alaska Native villages to establish municipalities through the ANCSA. Many villages have done so, but other Native communities oppose municipal status; municipalities are instruments of the State of Alaska and have no special government-to-government relationship with the United States.64 The State of Alaska, on the other hand, prefers to deal with municipalities rather than traditional tribal governments.65

The status of Alaska Natives is more a political than a legal question, but that is the nature of federal Indian law. Throughout history, the US policy shifts from assimilation to retribalization to termination have made themselves felt in Alaska, as outlined above. The most recent trend in federal Indian law is self-determination. During the 1960s and 1970s, Congress enacted laws that guaranteed civil rights to Native Americans both on and off reservations (the 1968 Indian Civil Rights Act) and demonstrated acceptance of tribal autonomy (the 1975 Indian Self-Determination and Educational Assistance Act). The Indian Child Welfare Act of 1978 gave tribes the authority over decisions about child custody, or when to remove children from their families, decisions that had previously been made by state governments. Similarly, the American Indian Religious Freedom Act of 1978 promise to protect traditional religious practices.66 Increasingly Congress has recognized the right of tribes to self-govern. Despite the ambiguities created by the ANCSA, it is clear that Alaska Natives are included as beneficiaries of the self-determination era. In October 1993, the federal government confirmed tribal status for Alaska Native villages through the publication of a list of federal recognized tribes. Approximately 250 Alaska Native villages were listed as ‘recognized and eligible for funding and services from the Bureau of Indian Affairs.’67

While the federal recognition of tribes in Alaska is an historic event, the existence of Indian Country has yet to be resolved. Several villages have transferred ownership of their lands from the village corporation created under the ANCSA to the tribal governments, hoping to establish it as Indian Country to be held in perpetuity by the tribe. Tribes have the power to prevent the taking of tribal lands without the tribe’s consent. Lands held by the ANCSA corporations are currently thought to be vulnerable to loss through procedures such as condemnation (the process of taking land for public use against the will of the owner) or seizure by creditors (in cases of non-payment of debts where land is used as collateral for loans). Establishment of tribal property could help to establish Indian Country, or the territory over which tribal governments have jurisdiction.68 Of course, it is not out of the question that the courts may some day rule that ANCSA corporate lands constitute Indian Country.69 As yet, the status of Indian Country in Alaska remains to be decided.

An important but largely unexplored area of tribal jurisdiction in Alaska is education. Until Alaska became a state in 1959, there was a dual system of education, with the federal government (Bureau of Indian Affairs) responsible for Alaska Native schools and the territorial legislature responsible for educating white children. After statehood, the federal government agreed to gradually merge state and Bureau of Indian Affairs schools into one system. In 1974, a lawsuit filed against the state on behalf of a 14-year-old Yupik student, Molly Hootch, for not providing local secondary schools in villages, led to dramatic changes. Due to the lack of secondary schools in rural Alaska, village students had to be sent to Bureau of Indian Affairs boarding schools in southeast Alaska or other western states. In the mid-1970s, as a result of the challenge brought on behalf of Molly Hootch, the state agreed to build secondary schools in the villages. Today there are approximately 120 small high schools in Alaska villages operated by regional and local boards. The state invested millions of dollars in these schools, and yet academic achievement among village students remains relatively low. This may be partly a consequence of the tension between the objectives of education for community use and education for success in Western culture. Some school districts have made an effort to introduce the study of Native languages and cultures into the classroom. In 1987-8, for example, a total of 7,781 Alaska Native students were enrolled in bilingual education programmes, the majority located in the Yupik and Inupiaq regions.70 A major obstacle to providing bilingual education is the shortage of Native speakers. According to one linguist, most Alaska Native languages (with perhaps the exception of Yupik) are spoken by few or none under the age of 40.71 It must also be mentioned that rural education remains dominated by non-Natives.72 Only 2.8 per cent of all teachers in the state are Alaska Native, and the percentage of Alaska Native school administrators is even lower.73

Currently six Alaska Native communities are applying for federal funds to operate their own schools. These would be tribal schools, separate from the state education system, governed and operated by the tribes themselves.74 Under current federal law, tribes can control their own schools.75 The major obstacle is the reluctance of the State of Alaska to transfer existing school facilities, since the state opposes tribal sovereignty in Alaska. Federal recognition of tribes in Alaska may force the state to abandon its opposition, however; in that case, tribally operated schools may become more common throughout the state.

Problems of alcohol abuse, suicide, unemployment and poverty among Alaska Natives are often traced to two sources: first, the severe social and psychological dislocation caused by rapid change in terms of population growth and billions of dollars in oil revenues and, second, the increased dependence of Native communities on outside factors (such as markets and governments) over which they have little control. Enhancing the capacity of local institutions to incorporate Native traditions and beliefs, it is argued, would mitigate the effects of rapid change and dependence. Yet the fact remains that Alaska Natives in the remote villages rely on the financial support of the state and federal governments. In western Alaska, for example, transfer income, or money and services provided by the state and federal governments, constituted 60 per cent of per capita personal income in 1989.76 Despite the fact that most Alaska Native villages lack running water systems or adequate waste disposal systems and have a high rate of hepatitis-A and other diseases, it was only in 1993 that substantial federal funding became available to improve wastewater treatment in rural Alaska.77 Finally, Congress has recently decided to fund research, prevention and diagnosis of foetal alcohol syndrome. Alaska has the highest rate of foetal alcohol syndrome in the country.78 Alcohol abuse, according to the Alaska Federation of Natives, ‘is undermining the ability of Alaska Natives to control their lives. It is the fuel that fires the cycle of violence and self-destruction.’79 The causes of, and solutions to, such pervasive and complex problems reach beyond the capability of federal dollars and politicians’ promises.

Conclusion

From the beginnings of Russian America to the present, Alaska Natives have experienced periods of rapid change, often with tragic results such as epidemics and culture loss. But there has also been a revitalization of Native traditions and a growing grass-roots movement to consolidate self-governance at the village level. Contemporary Alaska consists of contrasts between wealth and poverty, rural subsistence and urban professionalism, wilderness and resource development. These contrasts are also part of Alaska Native society. Alaska Natives own and operate some of the strongest corporations in the state. Cook Inlet Region Inc., Sealaska and Arctic Slope Regional Corporation generated 95 per cent of the total net resource revenues of $398 million for all the Alaska Native regional corporations from 1976 through 1991. Oil and gas leases as well as timber sales accounted for the three corporations’ revenues.80 Yet per capita income for Alaska Natives is less than half of the per capita income for whites in the state.81

Contrasts between Alaska Native cultures, state and federal policies, and regional economies is only part of the story. There are also deep ideological divisions between Alaskans, particularly among non-Natives, regarding the future prospects for Native societies. People who look at the material welfare of the Natives often point to the benefits of assimilation into the dominant culture: education, employment and a higher standard of living, as opposed to the subsistence lifestyle of a rural village. People who are concerned about the maintenance of a separate cultural identity in an age of television and electronic communication look to village self-government and local control. With regard to minority rights, those who emphasize the rights and responsibilities of the individual and healthy competition between different interests are less likely to support what they perceive as privileges belonging to Alaska Natives. Those who accept the premises of the federal-tribal relationship are more willing to consider the collective rights of tribes. Shifting policy on the part of the federal government and the absence of treaties with Alaska Natives certainly add to the ambiguity inherent in the current debate on Native rights.

Nevertheless, many Alaska Native villages are sweeping aside the ambiguity and establishing or strengthening their own institutions: tribal courts, tribal councils and schools. Through their own actions, they are contributing to the complex evolution of minority rights in Alaska. No doubt the state government will continue to oppose tribal sovereignty and Indian Country, but the federal government can exert substantial pressure on the state if it wishes. Here is the paradox of self-determination: dependence upon recognition.


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