The Alaska Claims Settlement
Comments by Janie Leask
From a panel discussion "The Objectives of Land Claims Settlements" during the International Conference "Towards Native Self-Reliance Renewal and Development" held in Vancouver, August 19-24, 1984
Alaskool note: At the time of this speech Janie Leask was president of the Alaska Federation of Natives
I would like to start off by giving you a little bit of background information, and then go into historical perspective and an overview of Alaska Settlement and the negotiations which led to the signing of the law. Then I will follow this by talking a little bit about objectives of the land claims and the expectations of the people, as a result of the settlement.
The Alaska Federation of Natives (AFN) was formed in 1966, to be the Native voice in the push for a land claims settlement in Alaska. Since the passage of the Claims Settlement Act in 1971, AFN has evolved into a political advocacy group which takes on state‑wide issues of concern to Alaska Natives. The membership in our organization is made up of thirteen regional corporations that were established by the Alaska Native Claims Settlement Act. In addition to the twelve non‑profit Native associations, have a board of directors or approximately 24 organizations. Our major effort for the last couple of years has trying to resolve some of the serious problems of the Settlement Act through amendments. We have already two separate pieces of federal legislation passed amending the Settlement Act. We are working on a third right now. The Alaska Claims Settlement Act provided Alaska Natives with 44,000,000 acres of land and $962,000,000 as payment for lands given up. The land and the money assets of the settlement were considered a great victory for Alaska's 80,000 Eskimos, Indians, and Inuits. The uniqueness of the settlement lies in the structure of the settlement which is rooted through the establishment of corporations. Regional and village corporations were established and they were chartered under state laws. They were organized to own and manage the assets with the individual Natives enrolled as shareholders in these corporations. The intention was to give the Native corporations some time to get on their feet, free from the threat of immediate takeover as soon as the law was signed. There is a provision within the law, which prevents Native shareholders from selling their stock or pledging it as collateral for a period of twenty years. That period ends in 1991. Thus, the year 1991 has become synonymous with three major problems of the Settlement Act. These are the problems that we in AFN have been working on for about the last two years.
One problem, which is a very real possibility, is that Natives may lose control of these newly formed corporations after 1991, when individual Natives are able to sell their stock. The second, is the loss of Native lands because, as structured in the Settlement Act, the lands are tied directly to corporations. The third problem is the settlement's exclusion of Natives born after the Act is signed into law. Under this provision, young people born after 1971, when the Act was signed, will not be members of the corporations, and as a result, will not benefit from the settlement. This is a very simplified explanation of the concern over the date 1991, and some of the issues that we in the AFN are dealing with. This background is relevant to today's discussion.
The Motivations For Settlement
As we in Alaska have learned all too well over the years, winning a settlement is really just a beginning. The land and the money that is received through the settlement itself is really only a tool. It should be viewed as a tool. The success or failure of the settlement, in the long‑run, depends on how it is used. The ultimate objectives is to determine how you can use this tool to achieve certain goals. This is a far different perspective from that of the late 1960s and the early 1970s, when the settlement was finally signed into law. The goals of Alaska Natives, back then, were quite similar to the goals of Natives today. First and foremost, we wanted to protect our traditional lands to carry on a subsistence way of life, which has been the essence of Native life in Alaska for centuries. We wanted to stop the encroachment by non‑Natives in general, but especially by the State of Alaska, as it began selecting the 102,000,000 acres under its entitlement. We wanted cash compensation for the lands previously lost or given up, and we wanted the right and opportunity to improve the standard of living for our people. The fact that the Settlement Act came out the way it did, is a function of several different elements which served the objectives of the other major parties that were involved in the settlement. Those other parties were the State of Alaska, the oil companies, and the Federal Government. The Federal Government had its own objectives. Important in this regard, is the fact that through Congress, the legislative branch served as the arbitrator.
The major motive behind the oil industry and the State of Alaska, in seeking a claims settlement, was the Prudhoe Bay pipeline and the Alaska lands entitlement. The fact is that neither the Prudhoe Bay pipeline or the land selection process could proceed until Native land claims were settled. Construction of the oil pipeline and state selections were frozen in 1966, by the then Secretary of the Interior, Steward Udall. It appears also that the economic interests were also a motive in Congress as well, because as early as 1962, congressmen began talking about settling Native land claims in Alaska, because of its potential for impeding development of Alaskan resources.
The historical factor really breaks out into two facets, both affecting Congress' attitude towards aboriginal people. First, since the treaty succession with Russia, the United States Congress has repeatedly recognized Native land rights by virtue of aboriginal use and occupancy. Yet decisions about how those land rights would be settled were repeatedly left for future congresses and future legislative actions. Nobody really wanted to deal with them so they passed the buck for the next major settlement.
The second historical factor which really has a lot of bearing today, is the treatment of aboriginal people by the United States Government. If you look at the history of how the United States Government has dealt with aboriginal people, you will see two basic trends. One is self‑determination and self‑government, and the other one, the second one, is usually called termination. While termination gives recognition of Native rights to land, it also pushes for Indians and Alaska Natives to be treated just like any other citizen, without any special considerations or special legal status. If you look at the history you will see that the United States Government has gone from one school of thought to another, and back and forth again, in its treatment of aboriginal people. I do not pretend to be an expert on Indian policies, or Indian law, but I believe that if you plotted the course and took a look at the actions of the United States Government, you would find that the Government has veered really more often towards encouraging the assimilation of Indians into the American mainstream. This really should not be surprising, because the United States has always been in image, if not in reality, the great melting pot of the world. The unstated rule of American society seems to be that you can retain your particular identity, be it cultural, racial or national, but only in so far as that identity does not come into direct conflict with the larger political and social order in society. However, Indian people in the United States historically have been an exception to these general social and political pressures. The Federal Government has consistently recognized the unique status of American Indians and Alaska Natives. The special status stems from the fact that basically we were there first, but even with this special status, pressures to assimilate have, at times throughout history, been strong enough to infringe on this special status.
By the mid and late 1960s, about the time when Congress and Alaska Natives were starting to really get serious about the settlement, Indian policies had begun to swing from assimilation back to tribalism. The social and political atmosphere of the time was dominated by the war on poverty, by President Johnson's great society and an increased sensitivity to the plight of racial and ethnic minority groups. That sensitivity brought recognition of the value of cultural diversity in the United States. And hand‑in‑hand with that sensitivity was the belief, or the assumption, that equal opportunity and economic development were the keys to improving the welfare of these racial and ethnic minorities. So what we had in the mid 1960s was a mix, it was a mix of economic, historical, social, and political factors which made an Alaskan Native land claims settlement possible in the first place, and which had a big influence on how that settlement was implemented.
It was this economic, historical, social, and political mix, that shaped the objectives for each of the parties involved ‑ the objections that were not in total conflict with each other. Alaska Natives wanted their land. Congress wanted to settle the issue in a fair manner and to pave the way for economic development. The oil industry wanted to get on with the pipeline. The State of Alaska wanted to get on with its land selection and the development of the resources on the land.
Conditions Necessary for Claims Settlement
Native groups today cannot manipulate the forces that were present back in the 1960s, when the Alaska Native land claims were being negotiated, but we can look at the situation in ways that are applicable to any Native groups seeking a land settlement. In theory, at least, the Alaska experience would seem to point to four things that could be applied anywhere to the benefit of those involved in claims settlements. First, you need a legal basis ‑ the law must be on your side. Second, you need a group consciousness to motivate your people as a group. In Alaska, the overwhelming fear in the 1960s was that Native land claims would be overridden by State land selections. The State had already gone out and started selecting traditional Native lands as part of their selections. Third, you need a dedicated group of Native leaders who have the talents and the time to negotiate with a government and any other non‑Native interest, on behalf of their people. Fourth, you need leverage, you need a weapon. In Alaska, the Natives had a formidable one: a threat to both the oil pipeline and a continued freeze on State land selections. In Alaska's case, the objectives of the different interests, the Federal Government, the State of Alaska and the oil companies, were not fundamentally conflicting. There were conflicts, but the stakes were such that compromise was possible and all interests, at least, got something they wanted. The nature of negotiations and compromise, which I am sure you are very well aware of, is that all parties must have something at stake and those objectives must have some compatible elements. If the different objectives are totally at odds the chances of reaching an agreement are reduced considerably.
I have been talking about the objectives of the Alaska Native claims settlement, but I think the expectations are a different issue, although people often talk of objectives and expectations as being somewhat synonymous. And as I said earlier, the objectives of Alaska Natives were very straightforward. We wanted our land claims settled, and we wanted compensation for lands taken or surrendered. But the expectations went much further. In retrospect, I think that our expectations reflected the atmosphere that was prevalent with the level of optimism present in the United States in the 1960s. If you look back at some of the testimony which was given by Alaska Natives during that period, you can see the great aspirations toward developing village economies, creating jobs, educating our young people and curing all the social ills. As viewed at that time, all this would occur while retaining and protecting Native lands and traditional ways of life. Yet, despite all these expectations, the settlement was and is a settlement of Native land claims and nothing more. It was not a conscious concerted effort to assimilate Alaska Natives, or to terminate the trust relationship that we have with the Federal Government. We are hearing some hints now, however, that Congress did hope that through the structure, through the corporate structure, that Alaska Natives would no longer need federal services and programs, because the corporations would eventually eliminate the need for them through indirect benefits, stemming from the healthy village economies that were going to develop in all of the villages. But the expectations of our Native people are really more important than any of the expectations Congress might have had. I think that many of the frustrations that we are hearing now, in Alaska, stem from the inability of the settlement and the corporations to meet these expectations.
The Settlement in Hindsight
Among Alaska Natives today, there is extensive and often times very heated discussion and debate about the corporations. The corporations are not traditional Native entities, they are something totally different from what Alaska Natives have ever had before. During the land claim struggle, very little attention was focused on how the settlement was going to be implemented and structured. Most of the emphasis, the energy, and the negotiations, were directed at how much land the Natives would receive and how much money they would get and the formulas by which the assets would be distributed. It was clear that Congress was adamantly opposed to a reservation system, because Congress had been hearing in the late 1960s (when the Land Claims Act was being drafted and negotiated) that the Lower 48 Indians felt that the reservations system had been a failure. So Congress wanted to try something new. And while Congress did not seem to be consciously promoting assimilation, it was not pro‑tribal either. And there is a section on language in the Settlement Act that specifically states that the Settlement Act was not to result in any permanently racially defined institutions. Again, I think the prevailing attitudes of the time, of economic development, and giving minorities the opportunity to "raise themselves up by the boot straps" made the corporate structure the very obvious choice.
People tend to be quite skillful in hindsight, and we have had thirteen years to take a look at the settlement and the accomplishments and some of the problems of the settlement. We see now, that in 1971 that the typical corporate structure conflicts with traditional Native values. We see now that in 1971 we should have insisted on a perpetual role to ensure that our children and future generations would benefit from the settlement. We see now that there are numerous ways in which we can lose our lands even before 1991. And we see now that we were perhaps very naive in our expectations of what the settlement and the corporations could accomplish. Some of the problems were obvious soon after the Act was passed, and as I mentioned, we have succeeded over the years in getting amendments passed through the Federal Government to correct some of the inadequacies of the Act. We were not able to see all of the problems nor were we able to predict what would happen, how it would work ten, thirteen, even twenty years down the road. But really, how realistic is it to anticipate changing perspectives and changing aspirations?
Nonetheless, I think that there are lessons that can be learned from our experience in Alaska, and one is that, yes, it is important to try to anticipate the ramifications of a settlement, and to do so very realistically. That requires a very hard, critical look at how your long‑term objectives mesh with the settlement structure. And I would like to just give a couple of examples from our experience, a couple that I have alluded to when I have talked about some 1991 issues. The protection of Native lands, as well as the title to those lands, were the essence of what Alaska Natives wanted from the Settlement Act. But did the structure ensure that protection in perpetuity? No, not at all. In retrospect, it should have been clear that by tying the lands to the corporations, the lands would be vulnerable if the corporations went public, which they are to do in 1991. My guess is that some of the Native leadership at the time saw that, but as the old quote goes "the train was leaving the station" and the Native leadership back in Washington at the time, who were negotiating the settlement, felt that there was a risk if we held out for more changes. They felt that we would perhaps lose some of the ground that we had already gained in the years of negotiating the settlement.
Another example was that the settlement called for Alaska Natives, as defined by Congress, to be one‑quarter or more Naive blood, were alive on December 18th, 1971, and enrolled in a village or a regional corporation as shareholders. If you happen to be born on December 19th, 1971, you would then be able to own stock only through inheritance. I gather then that the assumption was that Natives born later would inherit the stock from shareholders, thus perpetuating the "Nativeness" of the corporations. Apparently Congress really did not give a lot of thought to the "cut‑off" day. The government did not, at the time, want to create a perpetual role for Alaska Natives and the date of the signing of the Act was a very convenient one. But thirteen years later, we see that the cut‑off has created an artificial division between those Natives who are original shareholders and recipients of stock and money, and those who are not included simply because they were born too late. Furthermore, Native stock is falling into non‑Native hands, through inheritance and also sometimes through divorce settlements. And there is no provision in the settlement for Native children, born after 1971. Natives born after 1971 do not receive Native stock in the corporations. Could we have won a perpetual role? The answer is I really do not know.
Another lesson that can be learned from the Alaska settlement, is that the land and the settlement is not the ultimate objective. If the ultimate objective is protecting traditional lands and traditional Native ways of life, such as subsistence ways of life, then only land can help you do that. But the fact of ownership of the land is not enough to ensure protection. Title to the land is only a tool. The corporations that were established under our settlement are only tools. In this same way, the settlement itself is really only a tool. For any of these to work they must be used correctly, and yet they cannot be used correctly unless you know very, very clearly about what it is that you want them to do. The point here is that you must know what you want, and understand very clearly what you are receiving.
That, in a nutshell, gives you a little bit of perspective about Alaska and about the settlement and all that the AFN is working on. As I mentioned, we are working on the 1991 issue. We have been on this issue for the last couple of years. We have been holding statewide retreats for the Native leadership in order to try to work out the language. It is going to take another very major effort, back in Washington, D. C., to obtain the necessary amendments. But this has been very interesting for me to sit and listen to you and hear some of the same problems that we are currently working on. It is also very good to be able to come and talk to you, to share in some of the lessons we have learned over the last thirteen years.
This speech is posted with permission of the author, Janie Leask and was copied from the prepared proceedings of the conference. Copyright by William F. Sinclair on behalf of contributors, July 1985.