HISTORY OF EVENTS LEADING TO THE PASSAGE OF THE ALASKA NATIVE CLAIMS SETTLEMENT ACT, Kornelia Grabinska, Tanana Chiefs Conference, Inc., January 1983

APPENDIX I

APPENDIX II

Statement of Donald R. Wright, President of Alaska Federation of Natives (AFN), on occasion of meeting with President Richard M. Nixon at the White House, April 6, 1971.

For the past several months, I and other representatives of the Alaska Federation of Natives have been working closely with the Administration to assist them in formulating their position on the Alaska Native land claims. I have met today with the President to discuss the progress of these negotiations and to give him my views with respect to the Administration’s position on this important national issue.I told the President that the historical dimensions of this legislation are immense. Either it will go down in history as the most enlightened and equitable act of the U.S. Government toward the Native American, or it will be recorded as merely the last chapter of a tragic record of expropriation of Native American land and property rights. The President and the Congress must decide whether this last chapter is to be written in dignity or dishonor.I also told the President that a just and equitable settlement of our land rights in Alaska is by far the most important and most difficult Indian issue to be dealt with under his Presidency. There are many powerful vested interests which are actively opposing our land rights in Alaska — both within and outside of his Administration. A just settlement cannot be achieved without the President’s strong and continuing support and leadership.Because of our use and occupancy of the lands in Alaska for literally thousands of years, the Alaska Natives have valid Indian title to roughly 375,000,000 acres of land in Alaska. This title has never been extinguished by the United States since it negotiated with Russia and signed the Treaty of Cession in 1867. To secure these land rights, the Alaska Federation of Natives, after extensive and careful deliberations, proposed a settlement which would confirm our title to 60,000,000 acres of land.As compensation for relinquishing our title to over 300,000,000 acres, we have proposed a federal cash appropriation of $500,000,000 payable with interest over a nine-year period, and a perpetual royalty of 2% in all minerals taken from lands in the State. Our proposal has been introduced in the Senate as S.835, sponsored by 13 distinguished senators, and as H.R. 7039, in the House, with 25 distinguished House sponsors. The AFN most emphatically reconfirms its commitment to the positions embodied in these bills, and its intention to continue to seek settlement on this basis.The Administration is today sending to the Hill a proposal which would confirm our title to 40,000,000 acres of land. This title would be a full and complete grant of all rights, surface as well as mineral. As compensation for extinguishing our title to the remaining lands in Alaska and the minerals beneath those lands, the Administration’s proposal would authorize payment of $500,000,000 from the Federal Treasury over the next twenty years, and an additional $500,000,000 from the State of Alaska’s share of mineral royalties from lands throughout the State.I told the President that the Administration’s position constitutes a positive and constructive contribution toward achieving a just settlement of our land rights. It is the most responsive position yet taken by any national administration on this issue. We commend the President for his attention to and awareness of our property rights and his sympathetic hearing of our case. The President’s invitation to confer with him today demonstrates not only the good faith of the Administration, but the truly national importance of this issue.The Alaska Federation of Natives regards the Administration position as a foundation upon which a truly just settlement can be built. We do not, however, regard this as President Nixon’s final position, and we will continue to press for his support for the full AFN position. I want to make it perfectly clear that we do not in any way regard the Administration bill as a substitute for the AFN bills 5.83S and H.R. 7039 which are presently under consideration in the House and the Senate.I am especially gratified that the Administration’s position clearly indicates that it recognized the validity of our property rights in Alaska land, and it is not based on some concept of gift or welfare. To 60,000 Eskimos, Indians and Aleuts, Alaska is our land, the very basis of our lives. The real issue is not how much land we will be "given," but how much of our land we will be permitted to retain and how much we will release to the United States and on what terms. Because the land is the basis of our culture, the heart of our way of life, and the very means for our survival, our slogan for this effort has been "Take Our Land, Take Our Life."In reaching its position, the Administration is coming far closer to our position than has either body of Congress to this day. The Administration had vindicated its policy of Indian self-determination, and has shown that it spoke honestly when it announced last summer a new policy of dealing fairly with Native people. The Administration has not acted in a unilateral fashion. In response to our requests for consultation and involvement, they listened to us and they responded. For this, the Native people of Alaska are indeed grateful.Finally, let me emphasize how much today means to all of our Native people scattered across the face of Alaska in 200 villages—the people who are the true owners and stewards of our Alaskan lands. Our people have sent me and my fellow officers and directors of the Alaska Federation of Natives to Washington to negotiate a fair and equitable settlement with the United States. They are eagerly—if at times a bit fearfully—watching and waiting to see what we accomplish. It is their future—and that of their children—which is at stake and we will not fail them. We have put our trust in our government, which alone can translate hope into justice. The Alaska Federation of Natives now calls upon Congress to act promptly to settle Alaska Native land claims, to bring justice to our people, and peace to our lands. We ask all Americans to join us in our fight for justice.

APPENDIX III

REVIEW OF ALASKA NATIVES' STATUS
UNDER FEDERAL REGULATION

I. Treaty of Cession — March 30, 1867

This treaty, which enumerated the terms by which the territory of Alaska was to be sold to the United States, primarily dealt with the legalities and formalities of the transaction between Russia and the United States.

Very little mention was made with regard to indigenous Native peoples. Only in Article III are the indigenous Native people referred to, and then as "uncivilized tribes." Peoples were not to be "admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." "The maintenance and protection of the free enjoyment of their liberty, property, and religion," was not guaranteed. These "uncivilized tribes" were to be subject to any laws and regulations that the United States might adopt in their regard.According to David Case, since Article III refers to "uncivilized tribes," then there must be civilized tribes as well. This categorization was adopted from the Russians. During their occupation of Alaska, they divided the inhabitants of the territory into two categories: dependent and independent.Dependent inhabitants were the individuals that adopted Russian customs and religion. The independent inhabitants obviously did not adhere to the Russian way of life. Therefore, under the Treaty of Cession, dependent inhabitants were to be "admitted to the enjoyment of all rights, advantages and immunities of citizens of the United States." The independent, or "uncivilized," inhabitants were excluded. Thus, the relationship between the United States government and certain Alaska Natives began with the latter at a distinct disadvantage.

II. Organic Act — 1884

This document established the newly purchased territory from Russia as Alaska, with a temporary seat of government in Sitka.

The only reference made to Alaska Natives is made in Sec. 8 of this Act. This section provides for an ex-officio surveyor-general (who is the marshal provided by this Act), who was to uphold U.S. mining claims laws provided that "The 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 . . .’

Sec. 13 provides for the education of school-age children in Alaska and though no specific reference is made to Alaska Native children, $25,000 is appropriated for this education " . . . without reference to race . . ." This nondiscriminatory stance was further reiterated by the Act of June 6, 1900.

However, the Nelson Act (1905) established a dual school system, certain schools for "white children and children of mixed blood who live a civilized life," and certain other schools for all other Natives. In 1917, when the control of the school system was given to the Alaska Territorial Legislature, the Alaska Department of Education (ADE) was established to specifically deal with education in the State. In 1931, the Bureau of Indian Affairs replaced the ADE, giving control of Native education to the federal government.

III. Native Allotment Act — May 17, 1906

In this Act the Secretary of the Interior was authorized, at his discretion, to allot no more than 160 acres of non-mineral land in Alaska to any full or mixed blood Indian or Eskimo in Alaska who is over 21 years of age or the head of a family. That land was to be the homestead of the allottee and was further to be unalienable and nontaxable.

Subsequent changes to this Act (1956 amendment) placed certain stipulations on the selection of lands to be allotted. Natives were allowed to select any lands, mineral or non-mineral, but the United States reserved the mineral rights (oil, gas, coal, etc.) to all lands selected.

In addition, if lands in natural forests that were found to be suitable for grazing or agriculture, or, if occupancy on such land predated the establishment of that national forest, the land could be allotted. Also, the amendments endorsed a rule requiring five years use and occupancy before an application could be granted. Previously, Aleuts were not afforded equal status with Indians and Eskimos and were not allowed to apply for allotments. This was changed and Aleut status was made the same as Indians and Eskimos.

IV. Organic Act — August 24, 1912 (37 Stat. 512)

This Act, which provides for a capital and seat of government in Juneau, Alaska and for a legislature, makes no specific reference to Alaska Natives. The absence of and specific mention with regard to Alaska Natives could be read to mean that Alaska Natives were not to participate in the governance and/or control of Alaska and its resources.

The Constitution and laws of the United States were extended to the Territory of Alaska, except that the power of the legislature in Alaska to alter, amend, or modify laws in force in Alaska will not apply to the customs, internal revenue, postal laws, or to laws relating to wildlife in Alaska.

Funds were appropriated by this Act to the BIA for fulfilling treaty stipulations with various Indian tribes; however, these tribes were located in the continental United States. Funds were provided for the transportation of school-aged Native children (under 21) to be brought from Alaska and placed in remunerative employment positions in industrial pursuits.

V. Snyder Act — November 2, 1921 HR 7848

This Act authorized appropriations and expenditures for the administration of Indian Affairs. The Bureau of Indian Affairs, under the supervision of the Secretary of the Interior, was to spend and direct any money that the Congress may appropriate for the care and benefit of "Indians throughout the United States." The purposes allowed for such expenditures included: General support/education, conservation of health, industrial assistance, general administration of Indian property, the suppression of drug and liquor traffic, and for expenses in connection with the administration of Indian affairs.

At first, since the Snyder Act only applies to the BIA, its provisions did not affect the activities of the Bureau of Education in Alaska. Not until ten years later (1931), when the activities of the Bureau of Education in Alaska were brought under BIA control, did the provisions of the Snyder Act apply to Alaska Native programs.

The programs under this Act showed the importance of appropriation legislation in the shaping of national Indian policy by Congress. "Merely by obtaining an appropriation for ‘education and support’ for the Natives in Alaska, the Bureau of Education could set aside monies from that appropriation for various sorts of programs."¹ (¹Case, David S., The Special Relationship of Alaska Natives to the Federal Government. Pg. 78.)

VI. Native Townsite Act — May 25, 1926

Congress enacted this piece of legislation because Natives were excluded from the 1891 Townsite Act of 1926. The Act of 1926 provided an opportunity for Natives "to obtain title to lands withdrawn from public domain."*

Natives and non-Natives were eligible to obtain deeds for lots within subdivided portions and occupy unsubdivided lands of the same townsite. However, Natives were issued deeds which restricted their ability to convey their property.

In 1959, in the first of the Saxman opinions, the Act (1926) was interpreted to mean that trustees could convey subdivided land of a Native townsite only to Natives. This opinion and others had the effect of protecting predominantly Native communities from non-Native encroachment. However, the Saxman opinions were recently overturned by the Alaska District Court in Klawock vs. Gustafson allowing the trustee to permit non-Natives to occupy unsubdivided portions of Native townsites.

This act authorized the issuance of deeds to "certain Indians or Eskimos" for sections of Alaskan townsites and for the surveyance and subdivision of such tracts. These tracts were not to be subject to taxation, levy, or other claims. The Secretary of the Interior is authorized, when non-mineral lands are found to be claimed and occupied by Indians or Eskimos, to have those lands surveyed into lots and streets, and to issue a patent to a trustee, "who will then convey to individual Indians and Eskimos the land so claimed and occupied exclusive of that embraced in streets and alleys." This means that Natives’ lands could be legally taken by the government, divided into tracts and certain portions returned. The Secretary of the Interior was further authorized to prescribe regulations for the implementation of this Act.

VII. Indian Reorganization Act — June 18, 1934

This Act was ostensibly to deal with Indian lands and resources (their conservation and development); to give Indians the right to form businesses and other organizations; to provide a system of credit for Indians; to provide for vocational education for Indians, and other purposes.

Sec. 13 states, "The provisions of this Act shall not apply to any of the Territories, colonies, or insular possessions of the United States, except that Sections 9, 10, 11, 12, and 16 shall apply to the Territory of Alaska." Therefore, only provisions for appropriations for defraying costs of organizing Indian-chartered corporations and other organizations created by the Act; the establishment of a revolving fund to make loans for economic development; the appropriation of funds to establish vocational and trade schools and loans to pay for tuition, etc.; the establishment of standards of health, ability, etc.; and the right for Indians residing on the same reservation to organize for their common welfare apply to the Native people of Alaska.

The Indian Reorganization Act is among the most important pieces of modern Indian legislation. In 1936, when this Act’s provisions were extended to Alaska, it was adopted to apply to the nonreservation status of Alaska Natives.

In part, this Act was intended to grant certain rights of home rule to Indians. To accomplish this, Sec. 16 of the Act allowed tribes to draft constitutions and bylaws which, if approved by the Secretary of the Interior, would give the tribes the right to negotiate with federal, state, and local governments.

In Alaska, IRA provisions authorized tribes or councils to negotiate as recognized organizations with the federal and territorial governments. In doing this, the organization of an Alaska Native community, under Sec. 16, establishes that communities’ eligibility for most federal Native general programs.

VIII. Johnson-O'Malley Act — April 16, 1934

This Act authorized the arrangement between the Secretary of the Interior and "the States or Territories" for the education, medical attention, relief of distress, and social welfare of Indians. Alaskan Native people were included in the provisions of this Act since specific mention was made to include Territories of the United States as well as States, with the exception of Oklahoma. *amended June 26, 1936 to include Oklahoma, plus some provisions.

This program was part of the "New Deal" legislation of the 30’s. It was based on the concept that education was a state responsibility and that as state citizens, Indian children were entitled to the same basic education as other citizens. Therefore, states saw JOM funds as supplemental to their education budgets.

In Alaska, JOM funds were used mainly to bring Natives from villages without high schools to larger Alaskan towns. This was the main focus of the State’s boarding home program.

In 1973, State officials and AFN met to discuss the possibility of greater Native control over JOM funds. In 1975, JOM funds were transferred to AFN administration. However, due to administrative and fiscal problems, JOM funds were transferred back to BIA control.

IX. P.L. 280 as adopted August 15, 1953

Alaska added P.L. 85-615 — August 8, 1958

This Act gave the State the jurisdiction over criminal offenses committed by or against Indians* (or civil actions of which Indians are parties).

The provisions of this Act preserves the effectiveness of tribal and custom "not inconsistent" with State civil law. The State is also prevented from regulating Native interests in allotments, townsites and other restricted property in civil and criminal hearings. It also protects Indian property ("belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States. . . .") from "taxation, alienation, or encumbrance*

P.L. 280 was an attempt of Congress to comprehensively resolve the question of state jurisdiction over Indians. This legislation was heavily influenced by the termination and assimilation policy; yet, some elements of federal protection were maintained: it did not terminate the trust status of reservation lands.

P.L. 280 was amended in 1968 to add a tribal consent requirement to authorize states to retrocede jurisdiction to the federal government.

X. Indian Civil Rights Act — April 11, 1968 Title 10

Basically, this Act was "to prescribe penalties for certain acts of violence or intimidation, and for other purposes." Indian rights are enumerated in Title II of this Act with no special reference made to Alaska Natives. Indians are further referred to in Titles III, IV, V, VI, and VII, covering from Model Code Governing Courts of Indian Offenses to Materials Relating to Constitutional Rights of Indians, again with no specific reference made to Alaska Natives or Alaska.

This piece of legislation has caused inroads on Native sovereign immunity. "If sovereignty implies immunity from the power of other jurisdictions, then the Indian Civil Rights Act, by reducing that immunity, has significantly reduced the sovereignty of Native governments."*

This Act is a Federal law and, therefore, only allows Federal jurisdiction. State enforcement of civil laws, therefore, State jurisdiction, against Native governments wasn’t granted, unless through P.L. 280.

Therefore, even if this Act was interpreted as a waiver of sovereign immunity for federal courts, that did not mean the same for state courts. This Act incorporates many of the provisions of the U.S. Constitution, but the Ninth Circuit Court of Appeals has established that the provisions of this Act are to be interpreted "with due regard to historical, governmental and cultural values of an Indian tribe." The decisions of the Ninth Circuit Court are applicable to Alaska Natives, allowing federal jurisdiction over suits based on the Indian Civil Rights Act.

XI. Indian Education Act, Title IV (changed to Title III) of P.L. 92-318 — June 23, 1972

This Act provides for federal funding for Indian education; special programs and projects to improve educational opportunities for Indian children and adults; established the office of Indian Education to administer the provisions of this Title, and established the National Advisory Council on Indian Education to advise, review, evaluate and assist with respect to the administration of the provisions of this Title.

In Sec. 303(a)(2)(B) specific mention is made concerning children in Alaska as far as the requirements to qualify for federal grants for their education. Alaskan Indian agencies did not have to follow the requirement of having at least ten children or 50% of the total enrollment in the agency.

In Sec. 453(3) it includes as Indian . . . an Eskimo or Aleut or other Alaska Native, or . . ." Therefore, the provisions of this Act apply to Alaska Natives as well as other American Indians.

The programs of this Act operate simultaneously with other federal programs in Alaska, such as the Johnson-O’Malley Act and Title I of the Elementary and Secondary Education Act. Because of this, more specialized programs were allowed to develop for Native students. There is some overlapping between the federal programs, but each provides different services to different student populations.

XII. Indian Financing Act, P.L. 93-262 — April 12, 1974

The Act was "To provide for financing the economic development of Indians and Indian organizations, and for other purposes."

Sec. 3(b) defines Indians to include any "Native as defined in the Alaska Native Claims Settlement Act; (c) includes Native villages, groups, and corporations as defined in ANCSA; and (d) included "land held by incorporated Native groups, regional corporations, and village corporations under the provisions of ANCSA (S.O.)." The reason for so much specific mention of Alaska Native is undoubtedly due to the passage of ANCSA in 1971.

This legislation takes previous revolving loan funds and establishes a single $50,000,000 fund to make direct federal loans available to Native organizations and individuals. In Titles II and III, a new Indian Loan Guaranty and Insurance Fund is set up to allow Native organizations and individuals to secure private financing previously unavailable to them. Title IV established direct grants for Native business enterprises up to $50,000, and Title V required that the Secretary provide technical and management assistance with any grant or loan.

XIII. Indian Self-Determination and Education Assistance Act January 4, 1975

This Act was established "To provide maximum Indian participation in the Government and education of the Indian people; to provide for the full participation of Indian tribes in programs and services conducted by the Federal Government for Indians and to encourage the development of human resources of the Indian people; to establish a program of assistance to upgrade Indian education; to support the right of Indian citizens to control their own educational activities; and for other purposes."

Indians and Indian tribes are defined in this Act and in Sec. 4(b) states ". . . to include any Alaska Native village or regional or village corporation as defined in or established pursuant to ANCSA (S.O.) . . ." Again, the passage of ANCSA determined the extent to which Natives were to be included in legislation pertaining to Indians.

Title II of this Act amended the Johnson-O’Malley Act. This added three new sections to the JOM Act. These sections dealt with: 1) the requirements of prospective contractors, the prorating of money where non-Native students participate in a program; 2) the establishment of an Indian Parents Committee to work with the school board in the allocation of JOM funds where that school board is not made up of a majority of Indians; and 3) the authorization of JOM funds for school programs in federal dormitories attended by Native students.

Title I of this Act improved the implementation of educational programs in Alaska Native communities. Tribal organizations were permitted to take control over the planning and operation of nearly any service provided to Natives by the BIA or the Department of HEW.

XIV. Indian Child Welfare Act — November 8, 1978

"To establish standards for the placement of Indian children in foster or adoptive homes, to prevent the breakup of Indian families, and other purposes."

This Act gives Indian tribes exclusive jurisdiction over Indian child custody proceedings. In the adoptive placement of an Indian child, preference will be given to a member of the child’s extended family, other families of the child’s tribe, or other Indian families.

The Secretary was authorized by this Act to make grants to Indian organizations and tribes to establish and operate Indian child and family service programs on or near reservations. In addition, states and Indian tribes were authorized to enter into agreements with each other in regard to the care and custody of Indian children.

Sec. 4(3) defines Indians to include ". . . or who is an Alaskan Native and a member of a Regional Corporation as defined in Sec. 7 of ANCSA."* Sec. 4(8) defines Indian tribes to include Alaska Native villages.

*Are Alaska Natives who aren't enrolled in Regional Corporations exempt? (i.e., National, Urban).

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