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

THE STATE CONSTITUTION, THE STATEHOOD ACT, AND RECENT DEVELOPMENTS

            Alaska has just celebrated the tenth anniversary of the meeting of the Constitutional Convention which drafted what is considered a model State Constitution.

            Section 12 of Article 12 provides that:

            “The State and its people further disclaim all right or title in or to any property, including fishing rights, the right or title to which may be held by or for any Indian, Eskimo, or Aleut, or community thereof, as that right or title is defined in the act of admission. The State and its people agree that, unless otherwise provided by Congress, the property ... shall remain subject to the absolute disposition of the United States.”⁴⁵ (Emphasis added)

            The above paragraph is undoubtedly subject to legal controversy – the significant fact is that the right of the Native population to lands was recognized. The “absolute” control over such lands by congress was admitted – including the provision for tax exemption of lands in Native hands held by restricted title. It was evidently left up to the milieu of men and women working for statehood to help settle the land issue.

            The Alaska Statehood Act⁴⁶ passed by Congress in 1958 also left open the final settlement of Native lands. The right of title to land held by Natives or claimed by them was not defined as was expected by the framers of the State Constitution:

            “As a compact with the United States said State and its people do agree and declare that they forever disclaim all right title to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts *** or is held by the United States in trust for said Natives: that all such lands or other property, belonging to the United States or which may belong to said Natives, shall be and remain under the absolute jurisdiction and control of the United States until disposed of under its authority***”⁴⁷

            Here again is recognized the ultimate jurisdiction and control by Congress. Yet, the section allowing for State land selections from the public domain appears in Section 6. This section grants the State authority to select the following lands within 25 years after the date of admission into the Union:

            (1) 400,000 acres from lands within national forests in Alaska.

            (2) 400,000 acres from other public lands which are vacant, unappropriated, and unreserved at the time of their selection and which would be adjacent to established communities, or such prospective areas, or near possible recreation areas.

            (3) 102,550,000 acres from the public lands which are also vacant, unappropriated, and unreserved.

            It is principally the State’s land selection program which is bringing about the consciousness of a threat to the Native people’s homelands and hunting grounds, and is responsible for the increased interest in making land claims based on aboriginal rights, past Congressional acts, and judicial decisions.

            The Interior Alaska Indians have made most of the claims up to the present time totaling more than 20,000,000 acres. Their activity is attributable to several causes – organization, interest, leadership, and government agency assistance. However, the vast majority of Alaskan Natives living in the Northwest section and the Southwest area of Alaska have but barely begun to understand what is at stake and what their rights to land are. It will take an extended land education program led by Native leaders and assisted by “experts” to enlighten the people, to attempt to correct decades of administrative inactivity. We need time to consider the issues, to determine what the people desire, and to make rights assertions over those lands which we have wrung a living out of for thousands of years. The magnanimity of the United States will be tested in this small but vital issue: Will America treat a small, uneducated, and culturally different people with more than equal justice, when these people offer no threat, but hope that they will be allowed their living lands to live and hunt upon as freely as may be possible in a rapidly changing and ever-evolving society?

William L. Hensley, University of Alaska Fairbanks, 1966