"What Rights to Land Have the Alaska Natives?: The Primary Question" - May, 1966

THE ALASKAN NATIVE AND THE TREATY OF CESSION, 1867

            At the time of the Alaska purchase in 1867, there was an estimated total of 35,000 Alaska Natives living in the ceded territory² having been reduced from an approximated 74,000 in 1740 by disease, starvation, and hardship³. 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 1880⁴, at which time came a great influx of non-Natives in search of resources such as whales, furs, and gold.

            There was little mention 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.⁵ (emphasis added)

            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 in 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 aboriginal 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 Alaska 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 to be held 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 self-sustaining ways. They have already made great strides toward the American civilization.”⁶

            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 Alaska 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, drunkenness, and maladminstration. 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. What had not the seven and a half million dollars been paid to them instead of the Russians?”⁷

            A very significant aspect of Federal relations with the Alaska 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 1871,⁸ the year in which executive agreements became 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.⁹ In this respect, serious problems were avoided since laws governing Indians on 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 ahs 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 anomalous 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 property-minded, 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 Committee on Territories; “We bought them from the Russians and we assumed the obligation of taking care of them.”¹⁰