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

RESERVATIONS

In 1934, Congress after a lengthy study of Indian conditions throughout the States passed a monumental bill known as the Indian Reorganization Act,³⁴(Wheeler Howard Act). One of the most significant provisions of this legislation repealed the Allotment Acts which had severely cut down the amount of land held by Indians. Millions of acres of their lands have been obtained by non-Indians just as quickly as the Indians were able to obtain title to their property after the twenty-year protection provided by the Federal Government. In a simple transaction for a very low price, the Indian would part with his land and be left landless. It was in response to this situation that Congress gave to the Secretary of the Interior the power to create new reservations and to enlarge existing ones. It also provided that no land on Indian reservations would be allotted in severalty.

            Supplementary legislation two years later extended the provisions of the Indian Reorganization Act to Alaska. It gave the Secretary of the Interior power:

            “***to designate as an Indian reservation any area of land which has been reserved for the use and occupancy of the Indians and Eskimos by section 8 of the act of May 17, 1884…or which has been heretofore reserved under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with additional public lands adjacent thereto or any other public lands which were actually occupied by Indians or Eskimos***”

            Thirty percent of the Indian or Eskimo residents must have ratified the reservation at a special election before it could be instituted.³⁵ The bill, supported by Alaskan delegate to Congress, Anthony Dimond, became law on May 1, 1936.

            The idea of setting apart reservations for the use and protection of aboriginal Americans in Alaska seems to have been derived from the experiences of Congress in dealing with Indians historically. Many treaties were signed giving to tribes ownership and control of lands and its resources with limitations placed in the hands of the Secretary of the Interior.

            In 1903, the Senate Subcommittee on Territories visited Alaska and held hearings in thirteen towns investigating conditions which would enable Congress to pass appropriate legislation.³⁶ With the influx of whites in the pursuit of gold came diseases and whiskey which proceeded to wipe out Native villages at a rapid rate, and, several witnesses before the four Senators who made up the subcommittee gave testimony recommending reservations as a measure to protect the Indians and Eskimos. The following conversations indicate early thinking on the subject:

            “Senator Nelson. What is their (Indians) conditions now?

            “John C. Barb of Nome. … I think that if they were set apart in a sufficiently large portion of Alaska, and I think it is large enough for some of it to be set off for the Indians and allow them to pursue their own life in their own way that they would be self-sustaining and prosperous. I think that it is possible and feasible to set apart a portion of this Territory for the Indians which will never be gold-bearing country.

            “Senator Nelson. They would have to have a reservation where they could get fish and game?

            “John C. Barr. Yes sir.³⁷

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            “Senator Nelson. Do you think that if the Government gave them a good big reservation they would get along all right?

            “Peter Kokrine, an Indian. I think the Government would have to take care of the reservation.”³⁸

            One of the resolutions adopted by the city of Nome contained a statement recommending that “immediate action be taken by Congress to the end that suitable reservations be set aside for the Native Eskimos of Northwestern Alaska, and suitable buildings erected in which they may be housed and maintained under the supervision of established agencies.”³⁹

            Thus, with the implementation of the provisions of the Indian Reorganization act to Alaska, the Secretary of the Interior was empowered to select certain areas as Native reservations. He still maintains that power, but the experience of the 1940’s and the furor caused by Secretary Ickes proposal for setting up a hundred new reservations caused one writer to comment that “it seems doubtful that the executive branch would again attempt to affirm aboriginal … claims in Alaska via the reservation route.”⁴⁰ There are, however, such reservations in existence.

            There are certain characteristics about Alaskan reservations which differentiate them distinctly from reservations held by Indians based on treaties or those based on acts of Congress. Alaskan reservations created by executive order are “subject to the unfettered will of congress,”⁴¹ and are not permanent or nonremovable as are tribe controlled lands held by treaty. Tribal consent must be obtained before the legal status of the lands is disturbed. Alaskan reservations created by the Secretary of Interior do not grant title to Natives either as groups or individuals, nor does it grant permanent rights.⁴²

            Relevant to the oil-ladened lands of the Tyonek Reservation and to the possible settlement in the future of other Native land claims is that lands “withdrawn by executive order for Indian purposes or for the use and occupancy of any Indians or tribe, may be leased for oil and gas development...”⁴³ It is with monies paid to the Tyonek Indians from oil activity that the tribe is able to rebuild their community and invest in enterprises in Alaska which produce local income and employment.

            Furthermore, when there is a “taking” by the Federal Government of Indian lands for national monuments, forest preserves, and other like purposes, compensation must be made. The Tlingit and Haida Indians of Southeastern Alaska were awarded several million dollars, it seems, without Government (Congressional) “recognition” of ownership – which a recent Supreme Court opinion stated was needed before compensation can be made for appropriated lands. The Tee-Hit-Ton opinion stated that:

            “The right of Indians to occupy lands in the United States over which they had sovereignty prior to conquest by the white man is not a property right but amounts to a right of occupancy which the sovereign grants and, although protecting against intrusion by third parties, may terminate; such lands may be fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians.”⁴⁴