the statewide Alaska Federation of Natives which has led the Alaska natives in the attempt to obtain a resolution to the native land claims problem.

Under the Statehood Act-Alaska was given the right to select 103 million acres from the Federal lands. However the Statehood Act also stated that the State and its people agreed to disclaim all rights or title to any lands or other property-including fishing rights which may be held by any Indian, Eskimo. or Aleut―or lands that are held in trust by the United States for such Alaska natives.

As the new State proceeded with its selection-various groups in the interior of Alaska felt that the State was encroaching on their territory in making the statehood selections and they filed blanket claims with the Bureau of Land Management-which were accepted.

The Secretary of the Interior decided that no titles to land would be issued to third parties in areas claimed by the Eskimo, Indian, and Aleut.

The Alaska native no longer wants decisions to be made for him in Washington or in Juneau. We feel that every effort should be made to consult with the native groups in the State since we feel that in a democracy this is the prerogative of the people who will be affected and have to live under the decisions made by those in positions of authority.

I believe that this was the major error made by the Secretary of the Interior when his Department came forth with a bill designed to solve the native land claims problem in Alaska. It was quite obvious that the Secretary-in coming out with Senate bill 1964 was not aware of the political realities in the State of Alaska between the Alaska natives and the State at the time of the drafting of his legislation.

The Secretary's bill was absolutely opposed by all the regional groups in the Alaska Federation of Natives. The bill provided for only a small area of land around each community which no community of natives in Alaska would support. The Secretary's bill also provided hunting permits in certain areas which had a 25-year limitation-which we think is arbitrary.

The bill also provided for lands to be held in trust by a trustee who could do whatever he determined with the land-without consultation with the group for whom he is trustee.

Furthermore the Secretary's bill provided for termination of the trust within 25 years.

Very objectionable to the natives was the Secretary's arbitrary determination of 1867, as the date of taking, which was superfluous since most of Alaska-to this very day-has not been taken and therefore the takings would be in the future-rather than 100 years ago.

The Alaska Federation of Natives, formed in October 1966, had drafted a bill and was introduced by Senator Gruening in June 1967. The bill provided that the Court of Claims would determine which lands belonged to the natives of Alaska and would convey title to such lands claimed under Indian title.

It also provided that the Court of Claims would render judgments with regard to lands taken at the fair market value, needless to say this bill was not supported by the State or the Interior Department and would have resulted in the ownership in fee of most of Alaska by the native groups in the State.

It was recognized that very little progress would be made in solving the land problem in Alaska unless it were possible for the natives, the State, and the Interior Department to get together in the support of a single bill. Consequently, the Alaska Federation of Natives and other members selected by the Governor were appointed to attempt to come up with legislation which would be acceptable to the natives, the State, and the Interior Department.

The State selected Edgar Paul Boyko, the attorney general of the State to meet with the drafting committee of nine which were selected from the full task force by the chairman.

Secretary Udall sent Under Secretary for Public Land Management, Robert Vaughn, to meet with the task force in the drafting of the proposed legislation. Drafting sessions were held in early December, late December, and early January.

The bill-Senate bill No. 2906-was the final result of the several drafting sessions between the natives, the State, and the Interior Department.

The full task force unanimously approved Senate bill 2906 and the proposed complementary State legislation. The visit of Secretary Udall to Alaska in November, contributed greatly to the creation of the task force and the suggestion

of the Outer Continental Shelf revenues was considered one avenue by which the problem of the Alaska native land claims could be solved.

This would provide the Federal lands for payment of future takings by the Government and would not necessitate appropriations of large sums by Congress. The task force report of native land claims to the Governor is being made a part of this record. But there are certain objectives that the task force felt were important. The task force seeks to prevent years of litigation through the courts. We feel that not only will the State lose by lengthy litigation; but the natives would also be denied compensation for the lands taken and would not be able to utilize the funds due them for many years.

The need to utilize funds for economic development and building of homes and the advancement in education is necessary immediately.

Another objective in the route we have taken is to simplify the administrative process. We feel that the objective of the Interior Department and the Bureau of Indian Affairs is to allow their clientele to be more self-sufficient.

Therefore, we felt that the creation of the Alaska Native Commission would enable the natives to be a part of the administrative process. The fact that the commissioners would be residents of Alaska would enable them to have a great deal more understanding of the problems of the native peoples and the State.

The task force feels that the benefits of the land settlement should be spread widely among the villages; yet we feel that we must also preserve the concept of private property.

The task force further believes that the use of a corporate form of organization would enable the village and regional groups to participate in modern economy.

The task force proposes a grant of land of 40 million acres to the village groups, allocated among the villages in proportion to the number of persons on their rolls.

We also propose and accept the Secretary's suggestion that 10 percent royalty interest in Outer Continental Shelf revenues in lieu of compensation for lands reserved or disposed of to third parties.

The task force also requests an initial grant of $20 million from the Federal Government. Repayment would come from the Outer Continental Shelf revenues. The task force also recommends a 5-percent royalty interest in State selected lands, but excluding current revenue sources from State lands and beginning only upon the early lifting of the land freeze and resumption of the State selections.

Very important to the native groups is the recommendation that the natives be allowed to use the surface of lands used and occupied by the natives, if the use to which the land is put is not incompatible with such use.

I personally feel that the majority of Alaskans today would like to see a just and equitable solution to the Alaska native land claims problem.

Alaskans should recognize that a State such as Alaska will remain economically and socially healthy only if its major groups progress in a fairly equal

manner.

Therefore, if an equitable settlement is made, the present drastic economic imbalance will not persist. Furthermore, capital generated out of this settlement will circulate in those regions of the State presently without capital for economic development purposes.

The Alaska native feels today that he has met the challenge of attempting to resolve the very difficult, very complex, lands problem. We feel that if given the opportunity we shall be able to develop the leadership and the educated person who will enable the village and regional corporations to succeed in man. aging resources that will be his under the settlement.

The Alaska native seeks not to isolate himself from the State-but to become a moving and dynamic part of the State-and we feel that a resolution of the lands problems will enable us to participate in the development of the State, rather than be a burden in the progress that we see on the Alaskan horizon. We sincerely appreciate your coming to Alaska to spend time taking testimony which will assist you in passing legislation which we hope can be accomplished within a relatively short time.

Thank you.

UNIVERSITY OF ALASKA-THE PRIMARY ISSUE: "WHAT RIGHTS TO LAND HAVE THE ALASKAN NATIVES?"

(By William L. Hensley (Igagruk))

INTRODUCTION

A controversy of immense proportions is rapidly coming to a head in Alaska. It is a situation which has lain dormant (except for sporadic outbursts) since Alaska was purchased from Russia in 1867. This problem has been skirted by Congress, alternately grappled with by the Department of Interior then dropped to allow the furor to settle, kept Alaskan political leaders frustrated, and the courts have ruled time and again—but never with finality nor clarity. The problem is simply this: What are the rights of the Alaskan Natives to the property and resources upon which they have lived since time immemorial?

Two extreme positions may be taken on this issue by those unacquainted with the legal complexities of the problem. The two positions are held by both natives and non-natives. One holds that the Alaskan aborigine is simply a citizen of the United States and of Alaska with no more rights than any other citizens-therefore has no more right to land than Alaskan settlers arriving later. The opposing view holds that the Alaskan Indians, Eskimos and Aleuts-due to their habitation of and use of natural resources have an "aboriginal title" to land and its products which cannot be deprived them without their consent.

The problem is, of course, much more complex than is indicated above. It is politically volatile, an administrative tangle, and a judicial granny-knot which has been clouded by various opinions in courts at different levels.

This paper will trace the general development of the controversy since the acquisition of the Territory in 1867, attempt to clarify the issues through the presentation of court rulings, Interior Department decisions, and Congressional acts, and indicate more recent developments which appear to be leading up to a final solution of the problem.

The following statement reflects most cogently the mood in which the Alaskan Native seeks to resolve the land question-after a century of governmental indecision:

"They are beginning to speak, after the long silence. And they are beginning to grow angry and impatient. It is a situation the United States government must heed closely, not only for basic human reasons but for the international implications as well.

****Their future is perhaps the most critical problem the State of Alaska faces today.""

THE ALASKAN NATIVE AND THE TREATY OF CESSION, 1867

2

At the time of the Alaska purchase in 1867, there was an estimated total of 35,000 Alaska Natives living in the ceded territory having been reduced from an approximated 74,000 in 1740 by disease, starvation, and hardship. The Eskimos, Indians, and Aleuts composed from 95 to 100 per cent of the total population in the five geographic regions at the time of the change over and up until 1880,* at which time came a great influx of non-natives in search of resources such as whales, furs, and gold.

There was little mentioned in the Treaty of Cession in regard to the large native population concerning the definite status of their citizenship and nothing at all about the property rights of the aborigines. The Treaty provided that: The inhabitants of the ceded territory, *** if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes shall be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States and shall be maintained and protected in the free enjoyment of their liberty, property and religion. 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." (emphasis added)

1 "The Village People", the Anchorage Daily Times, 1966, p. III.

2 Alaska's Population & Economy Statistical Handbook, Vol. II. P. 7. (University of Alaska) 1903.

3 George W. Rogers, The Future of Alaska, John Hopkins Press, Baltimore, Maryland. 1962. pg. 63.

Alaska's Population & Economy Analysis, Vol. I, pg. 52. University of Alaska, 1963.
Treaty of Cession, Article 3.

Thus, from the beginning of American occupancy of Alaska, the status of the Natives in regard to land was left in limbo. Their citizenship, the opposite side of the coin of private land ownership, was also left in a highly confused state in that "uncivilized native tribes" were excepted from the enjoyment of privileges, rights, and protections granted the white citizens, Russians, and creoles who chose to remain in Alaska and become citizens.

The area of greatest interaction between Natives and non-natives (the military government particularly) took place in Southeastern Alaska where the capitol of Sitka was situated and most of the white population lived. It was from the experiences obtained in dealing with the southeastern Native-primarily Tlingits and Haidas-that much of the information upon which official thinking and action in regard to Alaskan Natives was based. Indeed, it is doubtful that many Natives were aware that their citizenship outside of their own tribal groups was being launched into controversy and their label changed from "Russian" to "American".

It must be remembered that each aborginal group had a past and a culture reaching hundreds and thousands of years beyond the point of contact with what the Discoverers of Alaska termed their "civilized" homelands. These Native cultures each had their patterns of civilization and their concepts of property both material and non-material. In regard to land, the use of it and concepts of ownership varied. The laws governing usage and occupancy of land among the major ethnic groups were unwritten, but were generally observed and accepted. A close relationship to the land and its resources is a distinguishing characteristic of Alaskan Natives, who, in order to survive, had to know intimately the terrain, seasons, and moods of nature.

The Indians of Southeastern Alaska who had to make the first response to intrusions upon their fishing areas and rights-of-way by the new overlords were sorely disturbed, yet impotent to change the course of developments without the knowledge of the civilization that had overtaken them. Force alone was insufficient-for purpose of law and precedent, demands had to wait the ability to communicate in writing and recorded speech.

Very misleading to those in Washington who were responsible for the administration of affairs in Alaska (not mentioning the ignorance of the people and area) is the descriptions of the Southeastern Indians and use of the term "Native" in official reports. Not having the opportunity to observe the varying habits and customs of the different groups, the military and civil administrator's reports contained misleading statements held to be applicable to all of Alaska generally. For instance, in their zeal to "civilize" the Native of the Southeast region one administrator reported that:

"Their conditions are entirely different. Their habits of life are unlike the habits of the Indians of the plains. They are more intelligent, settled, and reliable. They live in fixed abodes and are accustomed to independent and selfsustaining ways. They have already made great strides toward the American civilization."

The fact is that most of the Eskimos and the Interior Indians were migratory-moving with the seasons and not habituated to "fixed abodes" as were the more sedentary Tlingits and Haidas. Yet legislation and policy applied to all Alaskan Natives was passed on the basis of these reports.

Discontent arose among the Indians of the Southeast as the military governments degenerated into outposts of violence, drunkeness, and maladaminstration. More and more. the Indians felt the disintegration of their people and the deprivation of their lands. Bancroft, in his renowned history of Alaska writes that:

"The discontent arose, not from any antagonism to the Americans, but from the fact that the territory had been sold without their consent, and that they had received none of the proceeds of the sale. The Russians, they agreed, had been allowed to occupy the territory partly for mutual benefit, but their forefathers had dwelt in Alaska long before any white man had set foot in America. Why had not the seven and a half million dollars been paid to them instead of to the Russians?"?

The Executive Documents of the House of Representatives, 1st Sess., 52nd Congress, 1891-92. Vol. 16, Report of the Governor of Alaska. pp. 496-97.

The Works of Hubert Howe Bancroft, Vol. XXXIII, 1730-1887, San Francisco, A. C. Bancroft & Co., 1886, p 609.

A very significant aspect of Federal relations with the Alaskan Natives is the fact that there were no treaties signed with them. The United States had signed approximately 370 treaties with various nations, tribes, and bands of Indians by 1871, the year in which executive agreements become the methods of finalizing Indian-Government settlements on the mainland.

Furthermore, Alaska has never been declared "Indian country" and has therefore been excepted from Federal laws or executive actions applicable to such areas. In this respect, serious problems were avoided since laws governing Indians of the mainland would have been inapplicable to conditions in Alaska. The United States also did not recognize officially the tribal relations among Alaskans Natives, which has been the basis of official interaction between the Government and Indian people throughout America. In fact, the difficulties that Congress and the American society has had in assimilating the Indian people into the general life of the State has been their tribal organization and loyalty to it, and the treaties which were entered into and signed-to be changed, it was believed by the Indians only with their consent.

The Treaty of Cession thus left the Alaskan Natives in an anamolous position. They could not be citizens until they were "civilized," yet no criteria for determination of their achievement was indicated. Their rights and responsibilities were to be "subject to such laws and regulations as the United States may from time to time, adopt in regard . . . to them. More important, to the propertyminded, land rights were undelineate and were also left for future consideration. The position of the Natives, in short, was viewed by the government much in the light of one observer testifying before the Commitee on Territories; "We bought them from the Russians and we assumed the obligation of taking care of them."

99 10

THE ORGANIC ACT OF 1884 AND THE PROBLEM OF ABORIGINAL RIGHTS

Alaska remained under military rule until 1884 when Congress finally provided for a measure of civilian government-though the act did not grant the territory a legislature, a delegate to Congress, or general land laws."

The Act of May 17, 1884 provided the basic protection of lands for the Alaskan natives but in the same sentence, allowed for the development of the present title controvery by leaving this question open for "future legislation by Congress." The pertinent paragraph-section 8-states that:

"Indians or other persons in said district 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 is reserved for future legislation by Congress." 12

Much of the controversy over Native claimed lands now center on the interpretation of the words and phrases used in the above paragraph. The Native inhabitants of Alaska varied in their use of land, but the greater number (the Eskimos and Indians) were a migratory people, the seasons, the movement of game, and the necessity of game conservation required periodic habitation and use of extensive areas. In any claims put forward, the Natives would undoubtedly have to claim wide areas which were the traditional lands used by their forefathers.

The provisions for future legislation for acquiring title has never been wholly accomplished to this date. There is an argument stating that the Act of May 17, 19061 extending the Indian Allotment Act of 1887 to Alaska (of which more will be said later) was the promised legislation-however, even this piece of legislation was far from final since most Alaskan Natives were not citizens at this time, were unaware of the of the legislation enacted on their behalf, and did not provide for non contiguous selections.

William L. Hensley, The Administration of Indian Affairs, p. 2 (Unpublished manuscript). Melvin Crain, Governance for Alaska, Some Aspects of Representation (1957) (Doctorial Thesis), p. 265.

10 Conditions in Alaska, Hearings Before the Subcommittee of The Committee on Territories, Report number 28. Part 2, 58th Cong. 2nd Sess., pg. 144.

11 Ernest Gruening, The State of Alaska, (Ransom House, Inc., New York), 1954, pg. 51.

12 Act of May 17, 1884, Sec. 8, 23 Stat. 26.

13 34 Stat. 197, (Native Allotments).