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

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.¹¹

            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 controversy 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, 1906¹³ 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 legislation enacted on their behalf, and did not provide for non contiguous selections.

            During the years following the purchase of Alaska and more rapidly in the 1880’s, Alaska’s wealth in furs, fish, and gold drew a greater number of whites than ever before.¹⁴ The mode of living began to change – with the arrival of missionaries, fur traders, and schools the more sedentary life was adopted by degrees and village life started a metamorphosis which is still in progress today.

            A powerful argument against large Native claims based on aboriginal use and occupancy has developed with is derived from the changing conditions of the method of livelihood now prevalent. The hunting and fishing economy among many, however, is still the basic source of life – it will continue into the indefinite future. The use of land for industry and economic pursuits is just now becoming a part of the Native thinking due to pressures of our industrial society which demands “productive” use of natural resources. In order to satisfy those who feel this way, the Native claims include projected developmental plans if and when the claims are awarded.

            The courts have held varying positions on the extent to which Native claims may be considered valid based on customary use of the resources. An Alaska decision in 1904 held that the:

            “Act of Congress, May 17, 1884, for the protection of the property rights of the Indians of Alaska held to extend the lands claimed and occupied by them collectively in their villages and such other places as were occupied by them for fishing, hunting, and other like purposes.”¹⁵

            A Court of Claims decision in 1963 relating to Indians of mainland America further held that:

            “Indian title includes not only area in which the tribe has permanent villages or habitations, but also seasonal or hunting areas over which they have control even though those area are used intermittently or seasonally.”¹⁶

            Although the courts have ruled time and again in relation to aboriginal lands in Alaska, it is recognized that congress ultimately reserved to itself the responsibility of deciding the issue. The courts nor the Secretary of the Interior can dispossess Alaska Natives of lands.¹⁷ Because of the distinction placed between civilized and uncivilized Alaskan Natives, there has developed antagonism in certain areas of the state where it appears that the “uncivilized” Native was being overprotected by the Federal government in land use to the disadvantage of white businessmen.¹⁸ Nevertheless, it is recognized that:

            “The aboriginal tribes of Alaska have a right to occupy the public lands of the United States therein subject to the control of both lands and the tribes by the United States.”¹⁹

            The Organic Act of 1884, however, is the foundation upon which Alaskan Native claims to land are based. It is the basic law which promises a final settlement – the question of whether the provision that they “not be disturbed” in their possession of lands need not be discussed here.