1. An important part of rural education in Alaska concerns the military "on-base" schools. This paper focuses on Native education and does not discuss the "on-base" schools because their use in military enclaves has little effect on Native children.

2. Treaty with Russia concerning the Cession of the Russian Possessions in North America, March 30, 1867, 15 Stat. 539.

3. H. Chevigny, Russian America: The Great Alaska Venture, 1741-1867 at 247 (1965).

4. W. Marsh, Alaska Department of Education, North to the Future 9, (hereinafter cited as North to the Future).

5. The governor of Alaska, A. Swinford, reported in 1887:

6. C. Ray, Alaska Native Education—an Historical Perspective, Alaska Native Needs Assessment Part II, Bureau of Indian Affairs, Office of Indian Education Programs, Research and Evaluation Report Series No. 18 at l (Albuquerque, n.d.) (hereinafter cited as Ray).

7. Report of the United States Commissioner of Education, 1881 at 451.

8. "Report on Education in Alaska 1886," S. Doc. No. 85, 49th Cong., lst Sess. 20-21 (1886).

9. Act of May 17, 1884, c. 53, 23 Stat. 24.

10. Id. at 27-28.

11. North to the Future, supra at 17.

12. T. Hopkins, The Federal Government as Agent of Cross-Cultural Education in Alaska, in Education in the North (Darnell, ed.) at 56 (1972).

13. Compare J. Lazell, Alaskan Apostle, the Life Story of Sheldon Jackson 9 (1960) with J. Nichols, Alaska, A History of Its Administration, Exploitation, and Industrial Development During Its First Half Century Under the Rule of the United States 103-04, 167, 195 (1923).

14. The impressive accomplishments of Sheldon Jackson are chronicled in F. Darnell, Alaska’s Dual Federal-State School System: A History and Descriptive Analysis, unpublished dissertation, 1970, (University of Alaska Library) 160-70 (hereinafter cited as Darnell).

15. In re Can-ah-couqua, 29 F. 687, 690 (D. Alaska 1887).

16. Act of June 10, 1896, c. 398, § 1, 29 Stat. 345. For a discussion of the propriety of using Indian trust funds for sectarian schools, see Quick Bear v. Leupp, 210 U.S. 50 (1908).

17. Act of June 7, 1897, c. 3, § 1, 30 Stat. 79. The policy was restated in the 1917 Appropriations Act (Act of Mar. 2, 1917, c. 146, § 21, 39 Stat. 988) and was codified at 25 U.S.C. § 278. In 1968, the act was repealed and replaced with an act allowing use of Interior funds for education of Indians in sectarian vocational, technical and higher education institutions. 25 U.S.C. § 278a.

18. Act of June 6, 1900, c. 786, § 201-03, 31 Stat. 321, 521, as amended, 31 Stat. 1438.

19. Prior to 1905, only nine had incorporated under the act. (Juneau and Skagway in. 1900; Ketchikan and Treadwell in 1901; Nome in 1902; Douglas, Eagle, Wrangell, and Valdez in 1903.) North to the Future, supra at 20.

20. Towns could receive $15,000 a year for support of schools. The total available to towns equaled the amount appropriated for the rest of Alaska. Id.

21. Act of Mar. 3, 1899, c. 429, § 460, 30 Stat. 1336.

22. 31 Stat. at 521, as amended, 31 Stat. 1438..The amendment set aside license fees paid for doing business outside towns for the Secretary of the Interior to spend f or school purposes in those areas.

23. Act of Jan. 27; 1905, c. 277, 33 Stat. 616.

24. Id. at 617.

25. Id.

26. Id. at 618.

27. Id. at 619.

28. Davis v. Sitka School Board, 3 Alaska 481 (1908). It is interesting that counsel for the children was one William A. Kelly, who had been the superintendent of the Sitka Presbyterian Mission School against whom the habeas corpus proceeding in In re Can-ah-couqua, supra, was brought. For a period Kelly was Sitka District Superintendent for the Territorial Schools, also. North to the Future, supra at 18. The court indicated that efforts to gain admission to the school for the children in Davis "were not so much . . . those of the parents but those of Mr. Kelly" who had become interested because of his "peculiar field of labor among the native Alaskans." 3 Alaska at 489.

29. 3 Alaska at 488.

30. 3 Alaska at 491.

31. Act of Aug. 24, 1912, c. 387, 37 Stat. 512.

32. Id.

33. Ch. 74, [1915] Sess. Laws of Alaska, § 1.

34. Id. at § 2-29.

35. H. J. Memorial No. 12, Compiled Laws of Alaska, 1915 at 233-34 (1915).

36. Act of Mar. 31 1917, c. 167, 41 Stat. 1131.

37. Act of Feb. 14; 1917, c. 53, 39 Stat 903.

38. Ch. 64, [1917] -Sess. Laws of Alaska.

39. 8 U.S.C. § 1401 (a)(2).

40. Treaty with Russia concerning the Cession of Russian Lands in North America, March 30, 1867, 15 Stat. 539.

41. Cf. United States v. Lynch, 7 Alaska, 568, 572 (1927).

42. Report of the Alaska Commissioner of Education, 1920, 54 (1920). See 25 U.S.C. § 288 and 289 (1970) permitting enrollment of whites in Indian schools.

43. As late as 1930 at least 19 communities, many of them small villages, had separate, federally ran Native schools and territorial schools. Dept. of the Interior, Annual Report of the Governor of Alaska to the Secretary of the Interior for Fiscal Year ended June 30, 1930, 83, 86.

44. Report of the Alaska Commissioner of Education, 1920, 55 (1920).

45. Plessy v. Ferguson, 163 U.S. 537, 544 (1896) (dicta).

46. 7 Alaska 616, 624-25 (1927).

47. 8 Alaska 146 (1929). The holding was expanded upon in a 1943 opinion of the territorial attorney general which ruled that Native children could not be compelled to attend a Native school if there was a territorial school in the same community. 1943 Op. Alaska Atty. Gen. No. 38271-1943-803.

48. Ch. 95. [19291 Sess. Laws of Alaska.

49. Act of May 14, 1930, ch. 273, 46 Stat. 279, 321.

50. Report of the Alaska Commissioner of Education, 1935, 40.

51. Ch. 119, [1931] Sess. Laws of Alaska.

52. For a comprehensive review of prestatehood proposals and policies concerning transfer of federal education functions from the BIA to the territory, see Darnell, supra at 206-29.

53. Ray, supra (Appendix A) at 29. This is the same number of schools which had been transferred in the 1930s from the territory to the BIA because they were all Native schools. Report of the Commissioner of Education, 1935, 40.

54. Id. at 6, 27-28.

55. 25 U.S.C. § 452 (1970) (Act of April 16, 1934, c. 147, § 1, 48 Stat. 596, as amended 49 Stat. 1458).

56. NAACP Legal Defense and Educational Fund, An Even Chance 11-12 (1971) (hereinafter cited as An Even Chance). There was also concern that the presence of nontaxable Indian land within school districts should be compensated with federal aid. In that sense, Johnson O'Malley continued a policy begun in 1914, which allowed for tuition payments for Indian children in Public schools. Act of Aug. 1, 1914, c. 222, 38 Stat. 582. The Alaskan situation did not fit well the in-lieu-of-taxes purpose of the tuition program or the regulations under it, however, because of the absence of property taxes and the fact that Native lands were not "trust lands" with title held by the government as were Indian lands in the states. See generally National Indian Education Association, Study of Title II of P.L. 93-638, prepared for the Bureau of Indian Affairs, 11-68 (1975) (hereinafter cited Study of Title II) for a comprehensive legislative history of the Johnson O’Malley Act.

57. Amendment added by Act of April 16, 1934, c. 147,.48 Stat. 596.

58. Ch. 85, [1935 ] Sess. Laws of Alaska.

59. Study of Title II, supra at 192.

60. Ray, supra (Appendix A) at 43.

61. Id.

62. Id. at 42.

63. Id. at 7.

64. Id. at 8. Only two schools were transferred from federal control between 1954 and 1967. (Tanana in 1958; Circle in 1959.)

65. Id. (Appendix D) at 76.

66. D. Dafoe, Some Problems of Education of Native Peoples in Alaska, 36 (1959).

67. Ch. 67, [19551 Sess. Laws of Alaska.

68. Act of July 7, 1958, Pub. L. No. 85-508, 72 Stat. 339.

69. Alaska Const. art VII, § 1.

70. Macauley v. Hildebrand, 491 P. 2d 120, 122 (Alaska, 1971).

71. Breese v. Smith, 501 P. 2d 159, 167 (Alaska, 1972).

72. Alaska Stat. § 14.6010(l) (1975), formerly A.C.L.A § 37-1-3 (1949).

73. Alaska Stat. § 07.10.100-07.20.100 (1963).

74. Report of the Alaska Commissioner of Education, 1965, 2.

75. Darnell, supra at 239.

76. Ray, supra at 8-9.

77. Id. (Appendix C) at 106-07.

78. Id. at 106.

79. Act of May 17, 1884, c. 53, 23. Stat. 27-28.

80. Act of Jan. 27, 1905, c. 277, 33 Stat. 619, Act of Mar. 3, 1917, c. 167, 41 Stat. 1131.

81. 25 U.S.C. § 13 (1970). It is clear that legislation and administration of programs for the benefit of Indians does not offend constitutional safeguards against racial classification. E.g., Morton v. Mancari, 417 U.S. 535, 553 (1974).

82. Ray, supra (Appendix K) at 176.

83. Alaska Department of Education, 1975-76 Mini-Directory 29 (Feb. 1976).

84. Alaska Const. art. X, § 1.

85. Alaska Const. art. X, § 2-12.

86. Alaska Constitutional Convention, Minutes of the Committee on Local Government 1-3 (1955-56).

87. The provision if implemented in Alaska Stat. Title 29. Requirements for organized boroughs are set out at Alaska Stat. § 29.18.030 (1972).

88. Alaska Const. art. X, § 6. See Alaska Stat. § 29.03.010 (1972) which states that all areas not in an organized borough constitute a single unorganized borough. The legislature has never sat as the assembly for the unorganized borough.

89. Alaska Const. art. X, § 7.

90. Alaska Stat. § 29.33.050 (1972). The other mandatory powers and duties are assessment and collection of taxes and, planning, platting, and zoning. Alaska Stat. § 29.33.030 and .070 (1972). Additional areawide powers are acquired by transfers from cities and by areawide elections, § 29.33.250, and certain other powers outside cities can be approved at incorporation or added later, § 29.38.010 and .020.

91. Alaska Stat. § 29.43.030 (1972).

92. Ch. 27, [1953] Sess. Laws of Alaska; Ch. 68 [1953] Sess. Laws of Alaska; Ch. 49, [1955 ] Sess. Laws of Alaska.

93. E. Lindman, Alaska State Board of Education, A Foundation for Alaska’s Public Schools (Sept. 1961).

94. Ch. 164, [1962] Sess. Laws of Alaska.

95. State aid under the new act ranged from 59% to 100% of operating expenses. R. Guthrie, A Brief Historical Review of Alaska’s School Foundation Program 10 (Table 2) (State of Alaska Legislative Finance Division, December 12, 1974).

96. Ch. 70, [1963] Sess. Laws of Alaska; Ch. 153, [1966] Sess. Laws of Alaska; Ch. 125, [1968] Sess. Laws of Alaska; Ch. 95, [1969] Sess. Laws of Alaska. The 1969 Act added special state aid for districts impacted by state activities in the form of reimbursement to districts having children whose parents live and/or work on state (tax-exempt) property. This "mini-874" program operates similar to the federal impact aid program under P.L. 874 discussed infra in part II A.

97. J. Peterson, Final Report Memo to members of the School Finance Advisory Council, 27 January, 1970, discussed in R. Guthrie, A Brief Historical Review of Alaska’s School Foundation Program 13-15 (State of Alaska Legislative Finance Division, December 12, 1974).

98. Ch. 238, [1970] Sess. Laws of Alaska.

99. Alaska Stat. § 14.17.041 (1975). There are different schedules for schools under 1000 ADM, 1000 ADM or over, vocational education students, and special education students.

100. Alaska Stat. § 14.17.051 (1975).

101. Alaska Stat. § 14.17.056(a), (b) (1976). The base instructional unit for the fiscal year ending June 30, 1978 is $27,500.00. In 1970 it was set at $19,250.00 Ch. 238, [1970 Sess. Laws of Alaska. Increases were enacted in 1973, 1974, 1975, and 1976. Ch. 173 [1976] Sess. Laws of Alaska. Adjustments in the instructional unit allotment are provided for by statute in order to compensate for cost differences due to geography, climate, and distance from transportation facilities.

102. The formula is:

103. In 1975, the law was amended to increase state support from 90% to 93%. Ch. 81, [1975] Sess. Laws of Alaska. The percentage was increased to 95% in 1976. Ch. 173, [1976] Sess. Laws of Alaska.

104. R. Hartman & R. Reischauer, Reforming School Finance 11 (1973).

105. The newly established regional education attendance areas are funded under a method which utilizes the foundation formula. Alaska Stat. § 14.08.121. See discussion infra in part III E.

106. Governor’s Committee on Education. An Overall Education Plan for Rural Alaska (May 25, 1963, revised February 28, 1966), included in Ray, supra (Appendix E) at 78-101.

107. See discussion infra in part III.

108. 20 U.S.C. § 236 et seq. (.1974).

109. The legislative history and intent of P.L. 874 is discussed in detail in Study of Title II, supra at 68-87.

110. Act of Aug. 8, 1953, c. 402, § 1, 67 Stat. 530.

111. 20 U.S.C. § 238 (1976 Supp.). The local contribution rate is normally the per pupil share of all local revenues in the second prior year in comparable school districts of the state, but not less than one-half the statewide or national average per pupil expenditure, whichever is greater, and not more than 100% of the statewide average.

112. Id.

113. Study of Title II, supra at 72-78.

114. Act of Aug. 12, 1958, P.L. 87-344, 27 Stat. 559. The act also had been amended in 1956. Act of Aug. 3, 1956, c. 916, 70 Stat. 970.

115. 25 C.F.R. § 33.4 (c), as amended 23 Fed. Reg. 7106 (1958). See Natonabah v. Board of Education of Gallup-McKinley School District, 355 F. Supp. 716, 726 (D.N.M. 1973).

116. Act of June 25, 1959, P.L. 86-70, § 18(d)(1), 73 Stat. 141. The exception recognized Alaska’s special needs. It goes beyond the underlaying purpose of the act—relief from lost property taxes resulting from tax exempt status of federal lands. Native and federal lands in Alaska were exempt from tax under the Statehood Act, Act of July 7, 1958, P.L. 85-508, § 4, 72 Stat. 7999. To the extent this kept the legislature, acting as the assembly for the unorganized borough (Alaska Const. art. X, § 6), from instituting a local property tax scheme, it fits the act’s rationale. But the exception was further justified in that finding comparable districts for setting local contribution rates would be nearly impossible because of special conditions which vary from place to place in Alaska.

117. 20 U.S.C. § 238(d)(3)(B)(iii) (1976 Supp.).

118. Letter from Nathaniel H. Cole, Deputy Commissioner, Alaska Department of Education, to David Getches dated April 12, 1976. The effect of the loss of preferential rate is cushioned somewhat by 1974 amendments to the act. 88 Stat. 522. The amendments include all Indian children in the category for which full payment of the local contribution rate is made, thus increasing payments for Indian parents who work off federal land. Another important change was to give priority to payments for Indian children when Congressional appropriations are inadequate to pay for entitlements nationally.

119. See Letter from T. H. Bell, U.S. Commissioner of Education to Marshall L. Lind, Commissioner of Education, Alaska Department of Education, dated July 9, 1974, contained in M. Lind, Alaska State Department of Education, SOS/BIA Schools Dissolution, Exh. I (n.d.) in which a phase-out of the preferential rate over 3 years was mandated. Later negotiations led to the five-year phase-out described in the text.

120. Carlsbad Union School Dist. v. Rafferty, 300 F. Supp. 434 (S.D. Cal. 1969); Shepheard v. Godwin, 280 F. Supp. 869 (E.D. Va. 1968); Hergenrether v. Hayden, 295 F. Supp. 251 (D. Kan. 1968); School Dist. No. 3 v. Jorgenson, 293 F. Supp. 849 (D.S.D. 1968).

121. 20 U.S.C. § 240(d)(2)(A) (1976 Supp.).

122. Alaska Stat. § 14.08.121(a) as amended by Ch. 90, [1977] Sess. Laws of Alaska, § l(a)(i). See also Alaska Stat. § 14.17.061(c) (1974) which includes federal aid for the purpose of computing state supplemental aid.

123. 43 U.S.C. §1601-1624 (1976 Supp.).

124. 43 U.S.C. §1620(d) (1976 Supp.). The tax exemption of individual Indian allotments remaining in trust will not be affected. See 43 U.S.C. § 1617(a) (1976 Supp.); 25 U.S.C. § 334, 337 and Act of May 17, 1906, 34 Stat. 197.

125. 43 U.S.C. §1620(e) (1976 Supp.).

126. 20 U.S.C. § 631-647 (1974), revising and reenacting Act of Sept. 23, 1950, c. 995, 64 Stat. 967.

127. Study of Title II, supra at 88.

128. 2(c) Report: Federal Programs and Alaska Natives—Task II—Federal Programs for Alaska Natives’ Benefit (n.d.) (hereinafter cited as 2(c) Report).

129. 25 U.S.C. § 450 et seq. (1976 Supp.). Other provisions of the Indian Self-Determination and Education Assistance Act are discussed infra in Part 11 G.

130. 25 U.S.C. § 458(c) (1976 Supp.).

131. 25 U.S.C. § 452 (1970).

132. Study of Title II, supra at 192-93.

133. Id. at 16.

134. Id.-at 17.

135. Id. at 19. Early regulations of the BIA did not require such uses, however. Id. at 37.

136. Id. at 43.

137. Id. at 44.

138. Id. at 46.

139. Id. it 47, citing Hearings on Rules and Regulations for the Administration of the Johnson O’Malley Act before the Subcomm. on Indian Affairs of the Senate Comm. on Interior and Insular Affairs, 93d Cong., 2d Sess. 34 (1975).

140. Senate Committee on Labor and Public Welfare, Indian Education: A National Tragedy—A National Challenge, S. Rep. No. 91-501, 91st Cong., lst Sess. 40 (1969) (hereinafter cited A National Tragedy—A National Challenge).

141. "An Agreement Between the State of Alaska and the Bureau of Indian Affairs for the Administration of Johnson O’Malley Act Funds" (Alaska State Plan), 1970, included as Appendix B in Ray, supra at 44-49.

142. Alaska Department of Education, Coordinators’ Guide to the Boarding Home Program (Feb., 1970), included as Appendix G in Ray, supra at 118-32.

143. 2(c) Report, "Johnson O’Malley Program" 1. See Natonabah v. Board of Education of Gallup-McKinley School Dist., supra.

144. Appeal and Petition of Molly Hootch, et al. re Administrative Determination of B.I.A. Juneau Area Office, August 15, 1973 (Dept. of Interior) (hereinafter cited as Hootch administrative appeal).

145. Id., Decision dated May 6, 1974, at 7.

146. Natonabah v. Board of Education of Gallup-McKinley School Dist., supra at 726.

147. Hootch administrative appeal, supra, Decision dated May 6, 1974, at 10.

148. Alaska was at the time contracting for about one-fifth of the total JOM funds available nationally. 2(c) Report, supra "Johnson O’Malley Program" 1.

149. During pendency of the Hootch administrative appeal, the Department of Interior had withheld $1,156,250 which was due the state under the FY 1973 JOM contract.

150. The proponents of the administrative appeal were in the midst of litigation in which they were attacking the boarding programs as denying them equal educational opportunity and as violating the state constitutional mandate that schools be "open to all children of the state" (Alaska Const. art. VII, § 1). They sought provision of secondary schools within or nearby their home villages. Hootch vs. Alaska State-Operated School System, No. 72-2450, Superior Court of the State of Alaska Third Judicial District, on remand after appeal from partial summary judgment, 536 P. 2d 739 (Alaska, 1975). See discussion infra in Part III B.

151. 2(c) Report, supra, "Johnson O’Malley Program" at 1.

152. Id. The decision of the Hootch administrative appeal required that the supplemental nature of programs be justified each year and suggested that continuing a program for several years could make it basic. Hootch administrative appeal, Decision dated May 6, 1974, at 9. Thus, it may have been more difficult to justify the boarding program as a proper use of JOM funds in successive years, in any event.

153. 25 C.F.R. part 33 (now 25 C.F.R. part 273). Further, but not significant, revision of the regulations, and a recodification of existing regulations, became effective on December 4, 1975, as a result of the Indian Self-Determination and Education Assistance Act which made some changes in JOM. 40 Fed. Reg. 51303-10 (Nov. 4, 1975). Citations to the new, 1975 codification in the Code of Federal Regulations are given in the footnotes, along with an indication of any substantive change.

154. See Alaska Federation of Natives, et. al., Proposed Johnson O’Malley Regulations, February 28, 1974. This was the basic draft from which the finally promulgated regulations were taken.

155. Hearings on Rules and Regulations for the Administration of the Johnson 0’Malley Act before the Subcomm. on Interior and Insular Affairs, 93d Cong., 2d Sess. (1975).

156. Under the present regulations the veto power extends to all programs, basic as well as supplemental. 25 C.F.R. § 273.16 (2) (revising 25 C.F.R. § 33.3(d)).

157. 25 C.F.R. § 273.13(b).

158. 25 C.F.R. § 33.2(b), (now 25 C.F.R. § 273.37).

159. 25 C.F.R. § Subsection (a) & (b) now provide for the phasing out of existing noncomplying operational support programs in FY 1977 and 1978 with a one-third reduction each year, and assurance that supplemental programs will be no less than 75% for FY 1977 of sums received in FY 1975.

160. Study of Title II, supra at 193.

161. Id. at 161-71.

162. 25 C.F.R. § 273.31(a). The need for more aid per student in some states was recognized in the regulations largely as the result of urgings by Indian and Alaska Native groups. Alaska Federation of Natives, Proposed Johnson O'Malley Regulations, supra at 13-14.

163. 25 C.F.R. § 273.31(b) & (c).

164. Study of Title II, supra at 168.

165. Act of Dec. 23, 1975, Pub. L. No. 94-165, 88 Stat. 985.

166. Act of Jan. 4, 1975, Pub. L. No. 93-638, 88 Stat. 2206; 25 U.S.C. § 450-458e (1976 Supp.).

167. Act of June 4, 1936, c. 490, 49 Stat. 1458.

168. Id. at § 455.

169. Id.

170. 25 U.S.C. § 456 (1976 Supp.).

171. Id.

172. See 20 U.S.C. § 241 dd(b)(2)(B)(ii) (1974).

173. 2(c) Report, supra, "Johnson O’Malley Program" at 3.

174. Study of Title II, supra at 193-94.

175. 2(c) Report, supra, "Johnson O’Malley Program" at 8.

176. Study of Title II, supra at 193.

177. Id. at 194.

178. Id. at 195.

179. Id. at 194.

180. See Minutes, Statewide Johnson O’Malley Native Education Committee, Jan. 27-28, 1976.

181. Act of Apr. 11, 1965, Pub. L. No. 89-10, Title I, 79 Stat. 27; 20 U.S.C. § 241a et seq. (1976 Supp.).

182. 20 U.C.S. § 241a.

183. Id. at § 241c. The per pupil expenditure cannot be less than 80% or more than 120% of the average per pupil expenditure nationally. The formula was originally 50% of the product of the low-income factor times the per pupil expenditure. Adjustments in the low-income factor have qualified more people, however.

184. Id. at § 241e.

185. 20 U.S.C. § 24le(a)(3) (1974). Until a 1970 amendment (Act of Apr. 13, 1970, Pub. L No. 91-230, Title I, 84 Stat. 124) the requirement was found in the guidelines. ESEA Title I Program Guide No. 44, Guideline 7.1 (Mar. 18, 1968).

189. 45 C.F.R. § 116.17 (d).

187. 20 U.S.C. § 24le(a)(14). This requirement was added to the statute in 1974. Act of Aug. 21, 1974, Pub. L. No. 93-380. Title I, 88 Stat. 496. It strengthened the requirement of parent advisory committees then in the regulations. 45 C.F.R. § 116.17(o).

188. Act of Nov. 3, 1966, Pub. L. No. 89-l50, Title I, 80 Stat. 1191; 20 U.S.C. § 241c(a)(1)(C) (1974).

189. 2(c) Report, supra, "Title I, part A, ESEA," at 6.

190. Id.

191. Id. at 10-11.

192. Study of Title II, supra at 269.

193. 20 U.S.C. § 241h (1976 Supp.).

194. The Education Amendments of 1974 provide for research on the extent to which planning and programming are handicapped by late funding of Title I. Act of Aug. 21, 1974, Pub. L. No. 93-380, Title VIII, 88 Stat. 601.

195. See generally, An Even Chance, Ch. III, supra.

196. Act of Apr. 13, 1970, Pub. L. No. 91-230, Title I, 84 Stat. 124-26 (20 U.S.C. § 24le & f).

197. 2(c) Report, supra, "Title I, part A, ESEA" at 11.

198. Id.

199. In 1974 services were programmed for less than one-half the eligible BIA students. By contrast the state programmed funds for all but about 10% of its students. Study of Title II, supra at 268-69.

200. 20 U.S.C. § 241j (1976 Supp.).

201. Cf., Natonabah v. Board of Education of Gallup-McKinley School Dist., supra.

202. Study of Title II, supra at 101-02.

203. Act of Nov. 3, 1966, Pub. L. No. 89-150, Title II, 80 Stat. 1191.

204. Act of June 23, 1972, Pub. L. No. 92-318, Title IV, 86 Stat. 335. The act is discussed in more detail infra in Part II F.

205. 20 U.S.C. § 887c(c)(1)(C) (1974).

206. Act of Jan. 2, 1968, Pub. L. No. 90-247, Title VII, 81 Stat. 816; 20 U.S.C. § 880b, 880b-5 (1974).

207. Act of Apr. 13, 1970, Pub. L. No. 91-230, Title I, 84 Stat. 151; 20 U.S.C. § 880b-3a (1974).

208. 1970 U.S.C. Cong. & Admin. News 2803.

209. 45 C.F.R. § 123.16.

210. 20 U.S.C. § 880b-7—880b-13 (1976 Supp.).

211. See A National Tragedy—A National Challenge, supra.

212. Act of June 23, 1972, Pub. L. No. 92-318, Title IV, 86 Stat. 335; 20 U.S.C. § 241aa-24lff, 887c, 1119a, 1211a, 1221f-h (1974).

213. 20 U.S.C. § 241cc (l974).

214. Id. at § 24ldd(b)(2)(B).

215. See 20 U.S.C. § 241bb(b) (1974), amended by Education Amendments of 1974 to increase percentage from 5 to 10 percent. 20 U.S.C. § 241bb(b) (1976 Supp.).

216. Study of Title II, supra at 269.

217. 20 U.S.C. § 241bb(a) (1976 Supp.).

218. 2(c) Report, supra, "Indian Education Act" at 5.

219. Study of Title II, supra at 269.

220. 2(c) Report, supra, "Indian Education Act" at 4.

221. Id. at 7.

222. 20 U.S.C. § 887c (1974, 197 Supp.).

223. 2(c) Report, supra, "Indian Education Act" at 7.

224. Id.

225. Id. at 5.

226. Act of Jan. 4, 1975, Pub. L. No. 93-638, 88 Stat. 2206; 25 U.S.C. § 450-458e (1976 Supp.).

227. 25 U.S.C. § 450f (1976: Supp.).

228. Id. at § 450h.

229. Id. at § 450b(b).

230. Id. at § 450b(c).

231. Id. at § 450f(a).

232. See 25 U.S.C. § 455-456 (1976 Supp.).

233. 25 U.S.C § 458d (1976 Supp.).

234. Id. at § 458(c).

235. Id. at § 458(b).

236. Id. at § 458(e).

237. See C. Ray, A Program of Education for Alaska Natives (1959); See also Summary of recommendations in this regard in Darnell, supra at 239, Cf., L. Meriam, The Problems of Indian Administration (1928).

238. Ray, supra at 15.

239. Training Corporation of America State of Alaska Regional Secondary School System: Implementation Plan (Feb. 3, 1967) (mimeo.) (hereinafter cited as TCA Study).

240. Ray, supra (Appendix E) at 78-101. See text accompanying note 106, supra.

241. Id. (Appendix C) at 106-07. See text accompanying note 77, supra.

242. Id. (Appendix E) at 86.

243. The TCA Study itself showed that in 1966 there were 43 BIA or public schools in Alaska (excluding on-base schools) with less than 500 students; only seven had 500 or more. TCA Study, supra at 1-4a-4b.

244. J. Kleinfeld, A Long Way From Home (1973) (hereinafter cited as Kleinfeld).

245. E. Erickson, Childhood and Society 261-62 (1963); J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child 19 (1973).

246. Kleinfeld, supra at 34.

247. Kleinfeld, supra, Appendix II & III. Approximately two-thirds of the students surveyed by this study in the boarding home program and one-third of those in boarding schools dropped out.

248. Salisbury, Teaching English to Alaska Natives, 6 J. Am. Indian Educ. 1, 6 (1967). See also Bergman, Boarding Schools and the Psychological Problems of Indian Children, paper presented at Annual Meeting of American Academy of Pediatrics, Indian Health Committee (1967).

249. Ray, supra at 15.

250. See text following note 141, supra.

251. Alaska Stat. § 14.30.010(b)(7) (1975).

252. 4 Alaska Adm. C. § 33.030. Between 1959 and 1972 only 41 students received high school diplomas from the correspondence program. Only a few of them had spent two years or more in correspondence study. Deposition of Margaret Justice, June 8, 1973, Hootch v. State-Operated School System, supra.

253. Ch. 9, § 1. [1966] Sess. Laws of Alaska.

254. Alaska Stat. § 14.14.110 (1975).

255. See also Alaska Stat. § 14.14.120(a), indicating that a district may be declared inoperative any year in which enrollment falls below eight.

256. Sage v. State Board of Education, C.A. No. 71-1245 (Third Judicial District, Superior Court of Alaska).

257. 4 Alaska Adm. C. § 06.020 (repealed and reenacted effective July, 1974).

258. 4 Alaska Adm. C. § 06.025(2) (repealed effective July, 1974).

259. Hootch v. Alaska State-Operated School System, No. 72-2450, Alaska Superior Court, Third Judicial District, filed Aug. 15, 1972.

260. Brief for Appellants at 5-6, Hootch v. Alaska State-Operated School System, 536 P. 2d 793 (Alaska, 1975).

261. Id. 536 P. 2d at 811.

262. Alaska Const. art. VII, § 1.

263. 536 P. 2d at 803.

264. 4 Alaska Adm. C. § 06.020(a).

265. 536 P. 2d at 806, n. 50.

266. U.S. Const. amend. 14.

267. Alaska Const. art. I, § 1; See also art. I, § 3 prohibiting denial of civil or political rights because of race, creed or national origin.

268. 347 U.S. 483, 493 (1954).

269. See, e.g., Kleinfeld, supra.

270. Griffin v. Illinois, 351 U.S. 12, 17 n.11 (1956); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

271. E.g., Evans v. Newton, 382 U.S. 296 (1966).

272. 536 P. 2d at 800.

273. E.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)

274. E.g., Ravin v. State, 537 P. 2d 494 (Alaska 1975) (holding a state law prohibiting private use of marijuana to be an unconstitutional interference with private conduct); Breese v. Smith, 501 P. 2d 159 (Alaska 1972) (holding a school rule forbidding students to wear long hair to be an unwarranted invasion of individual liberties).

275. Id.

276. Federal Field Committee for Development Planning in Alaska, Alaska Natives and the Land 87 (1968).

277. Id. at 52.

278. E.g., Breese v. Smith, supra.

279. 406 U.S. 205, 218 (1972).

280. Id.

281. Florida v. Clay, 38-50312, County Judges Court, Collier County, Fla., Order Granting Defendant’s Motion to Dismiss dated July 24, 1972.

282. Teterud v. Burns, 522 F. 2d 352 (8th Cir. 1975). But see New Rider v. Board of Education, 480 F. 2d 693 (10th Cir. 1973), cert. denied, 414 U.S. 1097 (1973), denying first am[i]ndment protection to an Indian suspended from school for wearing braids in the traditional fashion. Dissenting from the denial of certiorari Justice Douglas decried the BIA boarding system with its "policy of stripping the Indian child of his cultural heritage and identity." Further, he linked the poor achievement and high dropout rate of Indian children in both BIA and public schools to policies which seek to assimilate and abolish cultural differences in Indian youths. Id., 414 U.S. 1097 (Douglas dissenting).

283. E.g., Aguchak v. Montgomery Ward Co., 520 P. 2d 1352 (Alaska 1974) (special notice requirements in suit against village defendant); Carle v. Carle, 503 P. 2d 1050 (Alaska 1972) (child custody may not turn upon cultural bias against Native village way of life); Alvarado v. State, 486 P. 2d 891 (Alaska 1971) (Native villager defendant entitled to have jurors selected from Native communities because of uniqueness of all aspects of Native life).

284. Breese v. Smith, supra at 169.

285. See 536 P. 2d at 808-09.

286. Id. at 809.

287. Agreement of Settlement, dated September 13, 1976, Tobeluk v. Lind, No. 72-2450, Alaska Superior Court, Third Judicial Dist. The case has a new name as a result of a change of parties.

288. Ch. 131, [1976] Sess. Laws of Alaska. The legislation did not make clear how much was used for high school construction in villages which have no secondary schools, but legislative history indicates an intent that high schools be built in many specific communities. E.g., Chairman’s Report on the Committee substitute for S.B. 564, House Finance Committee, Alaska Ninth Legislature, 1976. See also enumeration of several sites in the legislation.

289. Agreement of Settlement, supra note 285, p. 19, paragraph 8(a). The bond issue was approved by the voters and planning and construction are underway in a number of villages. The State Department of Education is bound to use its best efforts to secure approval for issuance of another $20,570,000 in bonds, adjusted by an inflationary factor, for building rural secondary schools, which would be submitted to the voters for approval in November, 1978. Any amounts above $20 million from the 1976 bond issue used for rural secondary schools as provided in the settlement agreement may be subtracted from the amount which must be produced by the l978 issue. The agreement specifies the locations where schools are to be constructed and provides for construction at other unspecified sites where needs are identified. Id., pp. 19-23, paragraphs 8-13.

290. 4 Alaska Adm. C. § 05. Under the settlement agreement, these regulations may not be changed. Id., p. 16, paragraph 1.

291. 4 Alaska Adm. C. § 05.030.

292. 4 Alaska Adm. C. § 05.040(a) & (b). The settlement agreement includes requirements for informing communities of their rights under these regulations, and sets up a schedule for compliance related to specific communities. Agreement of Settlement, supra, note 285, pp. 16-18, paragraphs 3 & 6.

293. 4 Alaska Adm. C. § 05.040(c). Procedures for seeking an extension of time for compliance are found at 4 Alaska Adm. C. § 05.060.

294. 4 Alaska Adm. C. § 05.050.

295. 4 Alaska Adm. C. § 09.050

296. Ch. 170, [19701 Sess. Laws of Alaska, $20,300,000; Ch. 195 [1972] Sess. Laws of Alaska, $16,000,000; Ch. 142, [1974] Sess. Laws of Alaska, $20,337,000.

297. Getches, The North Slope Borough, Oil, and the Future of Local Government in Alaska, 3 U.C.L.A.—Alaska L. Rev. 55, 59-60 (1973).

298. Id. at 60.

299. 518 P. 2d 92 (Alaska 1974).

300. Id. at 99.

301. Id. at 102, n. 30.

302. Interview with Dr. John Anttonen, Superintendent, North Slope Borough School District, January 19, 1976.

303. Ch. 98, [1966] Sess. Laws of Alaska; Alaska Stat. § 14.14.170 (revised and reenacted in 1975).

304. Id. at § 1; Alaska Stat. § 14.14.200 (revised and reenacted in 1975).

305. Alaska State-Operated School System, FY 1975 Budget Submission, Analytic Statement, 00808 (Nov. 15, 1973).

306. In 1965 the department had been reorganized to establish a separate Division of State-Operated Schools. Report of the Alaska Commissioner of Education, 1965, 23. Any change in delivery of rural education was imperceptible.

307. Ch. 46, [1976] Sess. Laws of Alaska.

308. Id., as amended, § 1, Ch. 199, [1972] Sess. Laws of Alaska. Formerly there were seven members, four from rural areas.

309. See generally, M. Berry, The Alaska Pipeline (1975).

310. 43 U.S.C. § 1601 et seq. (1976 Supp.).

311. Letter from Dr. Marshall Lind to Dr. Frank Darnell, dated January 8, 1973, included in Center for Northern Educational Research, Delivery of Educational Services to the Unorganized Borough 392-93 (Univ. of Alaska, Aug., 1973).

312. Resolution Concerning the Establishment of A Center For Northern Education, University of Alaska Board of Regents, Fairbanks, Feb. 18, 1971.

313. F. Darnell, K. Hecht & J. Orvik, Prehigher Education in the Unorganized Borough: Analysis and Recommendations 9-14 (1974) (hereinafter cited as Darnell, Hecht & Orvik).

314. Id.

315. H.B. 192 & S.B. 122, Alaska Eighth Legislature, 1st Sess. (1973).

316. Darnell, Hecht & Orvik, supra at 33-53.

317. S.B. 35, S.B. 94, S.B. 136, H.B. 24, Alaska Ninth Legislature, 1st Sess. (1975).

318. Ch. 124, [1975] Sess. Laws of Alaska; Alaska Stat. § 14.08.011 et seq. (1975).

319. Alaska Stat. § 14.08.031(a) (1975). The statute also uses the word "sub-boundaries" in reference to the regional corporations. It is not clear what this refers to.

320. Alaska Stat. § 14.08.031(b)(1975).

321. Alaska Stat. § 14.12.010 (1975).

322. Originally 20 REAAs were created by the Commissioner of Community and Regional Affairs on November 1, 1975, pursuant to authority in Alaska Stat. § 14.08.031(a). But after a meeting of residents of REAA 17 and the governor, REAA 21 (including Whittier and Tatitlek) was created on November 24, 1975, dividing REAA 17 along the boundary between the Chugach and Ahtna Regional Corporations. Memorandum. to REAA file from Michael C. Harper, Deputy Commissioner, Department of Community and Regional Affairs, dated December 3, 1975.

323. Alaska Stat. § 14.08.041 (1975).

324. Id. at § 14.08.051.

325. Id. at § 14.08.041(d).

326. Id. at § 14.14.170.

327. Id. at § 14.14.200.

328. Id. at § 14.08.101(6).

329. Alaska Stat. § 14.08.101(7), 14.08.161 (1.976).

330. Alaska Stat. § 14.08.151(1975).

331. Id. at § 14.01.101(5).

332. Id. at § 14.08.111(2).

333. Id. at § 14.08.101(3) & (4); § 14.08.111(3),(4) & (5).

334. Id. at § 14.08.121.

335. Id. at § 14.08.101(2).

336. See supra, Part II C.

337. See supra, Part II F.

338. See supra, Part II D.

339. See supra, Part II A.

340. See supra, Part II G, especially text accompanying notes 230-31.

341. See supra, Part I A.

342. See notes 171-72 supra, and accompanying text.

343. Statement by Nathaniel H. Cole, Deputy Commissioner, Alaska Department of Education, to E. Dean Coon, Assistant Director, Center for Northern Educational Research, December 29, 1976.

344. Darnell, Hecht & Orvik, supra.

345. Alaska Stat. § 43.18.100 (1974) provides for reimbursement of one-half of school construction costs or payments on indebtedness for such costs. Three-quarters of the cost of vocational education facilities is paid by the state. Payments are deferred until the year following payments by the district on bonded indebtedness. Alaska Stat. § 43.50.140 earmarks state cigarette tax revenues for school construction.

346. The bond issue authorized by the legislature in 1976 included funding for school construction in a number of school districts. S.B. No. 564, Alaska Ninth Legislature, 2d Sess. (1976). See supra. Note 285.

347. 1963 Alaska Op. Atty. Gen. No. 24.

348. Id.

349. There is authority for the department to make such transfers. Alaska Stat. § 14.07.030(9) (1975).

350. Compare Alaska Stat. § 29.18.030 with § 14.08.31. Each must take account of social, economic, cultural, geographic features and must consider transportation and communication. The requirement of an economic base sufficient to support local services is required for borough incorporation but not for a REAA. There is some indication that the legislature understood that new municipalities would not include entire REAAS. Alaska Stat. § 14.17.210 (1975), allowing continued full state funding for REAA schools which become city or borough schools, refers to individual schools and not to REAAs as entities.

351. Alaska Stat. § 29.18.090 & .100 (1972).

352. Id. at § 14.08.031.

353. Alaska Const. art. X, § 5.

354. Alaska Const. art. X, § 6,

355. Alaska Const. art. X, § 5. This section has been implemented by Alaska Stat. § 29.03.020(1972) which states that the legislature can establish service areas and reiterates the limitation to areas where services cannot be provided via incorporation or annexation.

356. Alaska Const. art. X, § 1.

357. 1961 Alaska Op. Attv. Gen. No. 24. A recent opinion letter of the Attorney General indicates that the analysis is one in which he still "fully concur[s]." Letter from Attorney General, by Ronald W. Lorensen, to Robert S. Gates, Alaska Department of Administration, dated March 26, 1976.

358. Alaska Stat. § 29.18.010 (1972).

359. Annexations are subject to the will of the voters of the area to be annexed in most cases. See Alaska Stat. § 29.68.010 (1972).

360. Cf. Abrams v. State, 534 P. 2d 91 (Alaska 1975).

361. 1961 Alaska Op. Atty. Gen. No. 24 at 6.

362. See Rosenfelt, Indian Schools and Community Control, 25 Stan L. Rev. 489, 502 (1973) (hereinafter cited as Rosenfelt).

363. See, e.g., discussion in Ray, supra at 3-5 and F. Darnell, Systems of Education for the Alaskan Native Population, in Education in the North (Darnell, ed.) 296-97 (1972).

364. Rosenfelt, supra at 503.

365. See Wilkinson and Volkman, Judicial Review of Indian Treaty Abrogation: As Long as Water Flows, or Grass Grows Upon the Earth—How Long a Time is That? 63 Calif. L. Rev. 601, 602, n. 4 (1975); Rosenfelt, supra at 503.

366. E.g., National Indian Youth Council v. Bruce, 366 F. Supp. 313, 322 (N.D. Utah 1973), affirmed 485 F. 2d 97, 99 (10th Cir. 1973), cert. denied 417 U.S. 920 (1974). The lack of specific treaty language likewise has prevented a tribe from recovering damages for failure to provide adequate medical and education services. Gila River Pima-Maricopa Indian Community v. United States, 427 F. 2d 1194 (Ct. Cl. 1970), cert. denied 400 U.S. 819 (1970).

367. 5 U.S.C. § 551 et. seq. (1970).

368. E.g., Morton v. Ruiz, 415 U.S. 199, 236 (1974).

369. Seminole Nation v. United States, 316 U.S. 286, 296 (1942), cited in Morton v. Ruiz, supra, 415 U.S. at 236.

370. Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918); United States v. Berrigan, 2 Alaska 442 (1905); Edwardsen v. Morton 369 F. Supp. 1359 (D.D.C. 1973); Koniag, Inc. v. Kleppe, 405 F. Supp. 1360 (D.D.C. 1975), appeal pending sub nom. Salamantof Village Assoc. & Cook Inlet Region, Inc. v. Kleppe, Nos. 76-1325-35 (D.C. Cir.); F. Cohen, handbook of Federal Indian Law 404 (1942). See generally, on the trust relationship, Chambers Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213 (1975).

371. 43 U.S.C. § 1601(b) (1976 Supp.).

372. Id. § 1601(c).

373. 2(c) Report, supra.

374. Budget data indicate the following monies were spent for education in Alaska in the years shown:

375. Letter from Clarence Antioquia, Area Director, Bureau of Indian Affairs, Juneau, to Honorable Jay S. Hammond, Governor of Alaska, dated January 20, 1977.

376. It has been estimated that severance taxes will account for $4 billion in state revenues by 1985. Study of Title II, supra at 271.

377. See, e.g. Statement of Emil Kowalczyk, Assistant Area Director, BIA Juneau Area Office, included in Darnell, Hecht & Orvik, supra, Appendix at 37; Lind, SOS/BIA Schools Dissolution (undated, unpublished) at 5; 2(c) Report, supra "Education Programs" at 1.

378. 2(c) Report, supra, "Indian Education, Federal Schools Program" at l.

379. Ray, supra (Appendix C) at 57.

380. Such transfers in the past were considered unlawful without specific congressional authorization. 29 Op. Atty. Gen. 272 (1911). In 1950 Congress enacted a blanket authorization for conveyance of school properties to school authorities (then under the territorial government) whenever the secretary determines that the properties are no longer required for Native school purposes. Act of Aug. 23, 1950, 64 Stat. 470.

381. Letter from Marshall L. Lind, Commissioner, Alaska State Department of Education, to Chairman, REAA Board, dated March 5, 1976.

382. E. Dean Coon, Anne E. Just, and Jerry N. Waddell, School Finance in Alaska Report No. 1: An Overview of Current Issues, Sources and Distribution of Funds for Public Elementary and Secondary Education (Fairbanks, Alaska: University of Alaska, Center for Northern Educational Research, 1976), p. 5. REAAs and the BIA schools they accepted on or after July 1, 1976, included: Northwest Arctic REAA—Kotzebue (K-12), Kiana (K-12); Lower Yukon Schools REAA—Emmonak (1-8), Hooper Bay (K-9), and Mountain Village (7-8); and Kuspuk Schools REAA—Kalskag and Lower Kalskag (1-8).

383. Memorandum of Agreement, State of Alaska and Bureau of Indian Affairs, Juneau Area Office (proposed), April 15, 1976.

384. Letter to Dr. Marshall Lind, Commissioner of Education, from John A. Moore, Acting Area Director, Juneau Area, Bureau of Indian Affairs, dated April 16, 1976. BIA also objected to provisions for continued federal funding of the schools once under REAA operation, which funding was to phase out over a five-year period.

385. Alaska Stat. § 14.08.031(d) (1975).

386. Id. at § 14.08.041(b) & (d).

387. Alaska Stat. § 14.08.111(l).

388. Alaska Const. art. VII, § 1.

389. Brown v. Board of Education, supra, 347 U.S. at 493. See discussion supra in text accompanying notes 266-71.

390. Compare Lau v. Nichols, 414 U.S. 563 (1974).

391. Alaska Const. art. VII, § 1; U.S. Const. amend. 1.

392. U.S. Const. amend. 1, cl. 1. Dependency of state function upon a religious function has been held to be unconstitutional. E.g., School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963).

393. Alaska Const. art. 1, § 4.

394. See Part II G, supra.

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