Present Methods of Acquiring Title
Congress has passed several pieces of legislation intended to provide legal means for Natives to acquire title to land in Alaska. Mainly because their application was too limited, none of the bills resulted in a successful solution to the overall land rights problem. Generally the bills failed to accomplish even what they intended, either because funds were not made available to carry out the purpose of the laws, or because personnel were not available to make the Natives aware of their rights under the laws.
NATIVE ALLOTMENT ACT: The Native Allotment Act of May 17, 1906, empowered the Secretary of the Interior to allot no more than 160 acres of non-mineral land to any Alaskan Native of full or mixed blood who was either head of a family or 21 years old. Land secured under this act is both nontaxable and inalienable (i.e., it cannot be sold without permission from the Secretary of the Interior or his representative).
Before 1930, the Bureau of Land Management interpreted the provisions of this act in a liberal manner. A Native could gain ownership of his fish camp site, hunting and trapping sites, berry camps, etc., so long as the total acreage did not exceed 160 acres. Nor was the Native required to "prove up" on his allotments, as the white man had to do under the Homestead Act.
However, after 1930 the BLM began tightening control of Native allotments, until they were "generally limited to homesites or a single piece of cultivated land." Since the agricultural life did not fit the Native mode and much of the land was more fitted to trapping than farming, few Native allotments were filed. It has only been since 1965, when the regulations were liberalized at the urging of U.S. Sen. E. L Bartlett, that allotments could be secured piecemeal in four 40-acre tracts and for purposes in keeping with the Native way of life.
Although there are almost 50,000 Natives in Alaska and the act has been in effect since 1906, there are fewer than 500 Native allotments recorded with the BLM today. The past failure of the act has been attributed to the tightening of provisions; the fact that little money was appropriated for the necessary surveys, claim investigations and recording work necessary; and the lack of personnel in existing agencies to handle the task of explaining the Native Allotment Act to the Natives.
1926 TOWNSITE ACT: The 1926 Townsite Act was designed to give Natives title to small acreages on which they had their homes. The legislation included provisions from the general townsite act of 1891, but made it possible for Natives to obtain restricted deeds to the lots they were occupying. Restricted deeds were authorized to safeguard the Native who might not be aware of the value of his land or the laws regulating land tax, mortgages, etc. Under a restrictive deed the title rests with the Native, subject to a restriction against alienation or taxation.
In 1953 Congress authorized the Secretary of the Interior or his representative to issue unrestricted deeds to the Native owners of restricted deed property. The owner must first petition for a change of status. Then the area director for the Bureau of Indian Affairs determines, by the informal method of asking various Native leaders, if the applicant is "competent." Once competency is established, the deed may be changed. Apparently the BIA has never denied the competency of any applicant and the requirement is considered a mere formality.
RESERVATIONS: In 1936 the provisions of the Indian Reorganization Act were extended to Alaska. Under these provisions, the Secretary of the Interior was given authority "to designate as an Indian reservation any area of land which has been reserved for the use and occupancy of the Indians and Eskimos . . ." The stipulation was that 30 per cent of the area residents had to vote for the reservation by secret ballot. Shortly after the bill become law, Secretary of the Interior Ickes proposed setting up 100 new reservations in Alaska.
The reaction was violent. Commenting on the reservation policy in UNITED STATES v. LIBBY, McNEIL & LIBBY, the court said in 1952:
". . . it is no exaggeration to say that nothing since the purchase of Alaska has engendered so much ill feeling and resentment as the Department's reservation policy . . . Whatever may be said in justification of reservations in the unsettled regions of Alaska, they are viewed as indefensible in Southeastern Alaska, and generally condemned by white and Indians alike as racial segregation and discrimination in their worst forms."
The Secretary of the Interior still has the power to create reservations, but is not (some say "will not") doing so. Although a few Native leaders have indicated that reservations would solve the land rights question, most react as strongly against the idea today as they did in the 1940's.
Past Recommendations to The Interior Department
The problem of Alaska Native land rights has haunted the Department of the Interior for years, and there has been no shortage of recommendations on how to deal with the issue. The Department of the Interior bill now before Congress incorporates recommendations made as early as 1944. The bill even more closely follows recommendations made in 1962 by a specially appointed three-man task force.
1944 ABORIGINAL RIGHTS HEARINGS: In 1944, Richard H. Hanna acted as examiner for the Interior Department in hearings on Native land claims for the towns of Hydaburg, Klawock and Kake. At the end of these hearings, the examiner reached the following "conclusions of law":
Occupancy necessary to establish aboriginal possession of land by an Indian tribe, bond, or individual Indian is a question of fact.
Lands included in the ancestral home of Indians, in the sense that they constituted definable territory occupied exclusively by them, are lands to which they have "Indian Title" until same is extinguished by Congress.
The policy of the government to respect the aboriginal possession of land by Indians applies to land ceded by Russia under the Treaty of 1867 with the United States.
An Indian aboriginal claim to land will be recognized although it has no basis in any treaty, statute, or other formal government action.
Intent of Congress to extinguish Indian title through statutory enactment is not to be lightly implied, all doubts in the construction of the statute being resolved in favor of the Indians.
The policy of the United States in dealing with Indians has been to accept the subdivision of the Indians into such tribes or bonds as the Indians themselves adopted and to treat with them accordingly.
RECOMMENDATIONS: In connection with his findings and conclusions, the examiner made the following recommendations:
That the Department of the Interior shall adequately respect all aboriginal rights of use and occupancy of the Indians, bonds or tribes which have not been extinguished or abandoned, and, so far as possible, refrain from leasing, recognizing homestead locations or granting other rights to non-Indians until title is first extinguished.
That appropriate legislation be recommended to Congress by the Secretary to authorize thorough investigation of the extent of lands, waters or rights, lost of the Indians by wrongful taking of the same; the survey of such lands and waters and apprisal thereof to determine the amount of damage resulting therefrom, as well as the present value of such lands, waters and rights should the Congress elect to extinguish all such rights upon payment of adequate compensation therefor by the United States.
That Congressional action failing for the correction of the present situation, the Secretary of the Interior shall set aside for the bonds of Indians here involved and other bonds, who may be similar circumstanced and choose to join with them, a reasonable portion of the area claimed by them where continued use and occupancy is shown.
That such protection of said Indians take into consideration their present economic situation and their present numbers, and be a consideration for the cession and release of all aboriginal rights to the larger areas claimed or to be claimed by other Indians, under approval, by affirmative votes, of a majority of each tribe involved.
TASK FORCE REPORT: In December of 1962, a three-man task force submitted a report to the Secretary of the Interior concerning Native problems in Alaska. Concerning land claims, an Interior Department news release dated March 5, 1963, stated: "Some of the lands claimed by the Indians, Eskimos, and Aleuts have already been selected by the state, and the Department of the Interior has been faced with the problem of deciding whether to comply with the state's request and transfer title to it, or to wait until Congress acts to define Native rights more precisely." The task force suggested a number of steps for resolving this controversy. These include:
—granting individual Natives the title to home sites and hunting and fishing sites;
—withdrawing small acreages in the vicinity of the Native villages for their future growth and development;
—establishing Native hunting and fishing privileges in larger areas;
—setting up a special tribunal in which to consider Native claims for lands taken from them by others in the period since 1884;
—Congress should prescribe a definite period of time in which to adjudicate Native claims so that the state land selection program will not be indefinitely postponed.
The task force's land recommendations were sharply criticized by the Association on American Indian Affairs, mainly because there was no recommendation that the Natives be compensated for the land taken from them, nor was any mention made of mineral rights on Indian Title lands.
Five years ago the Moquawkie Indians of Tyonek Village were a destitute people. The Secretary of Interior, astute attorneys and the good luck of oil-rich land have changed the picture. Today Tyoneks are the Cinderellas of Alaska.
The rags to riches story of the Tyoneks sets no legal precedents for the land claim situation in Alaska, but it does point up the inconsistencies of federal and state attitude toward Native land claims.
In 1908 and 1915 the federal government, by executive order, withdrew a total of approximately 26,000 acres of land from the public domain to establish school facilities for the 55 families of Tyonek. The 1908 order reserved land "for educational purposes," and the 1915 order reserved land "for the use of the U.S. Bureau of Education." Neither order gave the Tyoneks a permanent or compensable interest in the withdrawn land.
Tyonek is located across Cook Inlet from Anchorage. In the late 1950's, the northwest shoreline of Cook Inlet become a key area for oil exploration, and it was foreseen that oil exploration might take place within the reserve.
A December 28, 1962, task force report to the Secretary of the Interior included this comment on the Tyonek Reserve:
". . . there is a question of whether this area is susceptible to the usual leasing procedures for public domain land . . . If it should be determined that the Reserve lands are public domain the State can retain 90 per cent of the profit from leasing . . . On the other hand, if Congress should grant the Tyonek Village mineral rights to this area, the entire income could be credited to this village, which at present contains about 150 lndians." (Actually about 250.)
The task force recommended that the Department of Interior "as custodian of federal properties and trustee of the Indians" should lease the reserve for oil prospecting and place the income in escrow.
The Secretary took this advice and made arrangements to lease. This was done without consent of the Natives, and the Tyoneks brought suit in court against the director of the Bureau of Indian Affairs. The suit was (later) dropped after a Solicitor's opinion held that the Tyoneks' land was a reservation for the purposes of a 1927 mineral and oil leasing act. Thus, the Tyoneks could lease their lands and use the money for their own benefit. Congress never was ordered to act on this matter, and the State of Alaska never protested the Solicitor's opinion.
The approximately $13 million the Tyoneks received from the leasing is now budgeted by the Secretary with the Tyoneks handling the funds through on advisory committee. It is worthwhile to note that so far the money has been used to improve the village and has been otherwise invested in Alaskan enterprises and statewide Native undertakings.
Since the Tyonek case was never decided in court, it can hardly be used as a precedent in the general land claim picture.
In an effort to assure that all views were adequately reflected in this article, drafts were reviewed by the following persons:
Roscoe Bell, Director, State Division of Lands
William Boesch, Research Assistant to U.S. Senator E.L. Bartlett
Edgar Boyko, Attorney General, State of Alaska
Clifford Groh, Attorney for Native Claimants
William Hensley, Representative from Kotzebue, Alaska State Legislature
Phil Holdsworth, Commissioner, Alaska Department of Natural Resources
Barry Jackson, Attorney for Native Claimants
Charles Luce, Under Secretary, Department of the Interior
Frederick Paul, Attorney for Native Claimants
John Roderick, President, Petroleum Publications, Inc.
Lewis Sigler, Assistant Legislative Counsel, Department of the Interior
Burton Silcock, State Director, Bureau of Land Management
O'Dean Williamson, Realty Officer, Bureau of Indian Affairs
Although the Institute is solely responsible for the completed publication, comments and opinions of the above persons were taken into consideration and their help is appreciated.