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Why the Natives of Alaska Have a Land Claim William L. Hensley Speech given November 1969 This is Our Land Although I am an American citizen and a citizen of Alaska, and I accept the responsibilities given to me as a legislator in the Alaska House of Representatives, I speak now as an Eskimo, as an Alaska Native, within the framework of our controversy with the State of Alaska and the United States of America. My purpose in this paper is to inform you of the present controversy in Alaska relating to the claims of the Eskimo, Indian and Aleut people to land that we have occupied for centuries. Although we recognize the fact that there is presently little that we can do to secure totally all of the land we occupied in pre-Russian and American times, we do not believe that the simple planting of a flag on our soil secures that land for any country at no cost to it. We are now seeking to secure a settlement with the United States, through the Congress, of our land rights. We recognize that when European nations secured colonies in parts of the world already inhabited by indigenous peoples, there never was gentle treatment of the aborigines. The European vanguards came to exploit the new land, and to civilize its peoples. The Alaskan experience was no different. When Alaska was first sighted in 1741, the Native population numbered about 74,700. Thirteen years after Alaska was sold by the Russians, the population was decimated to 33,000. The Eskimo population went from about 54,000 to about 18,000, in just 150 years. Although this Congress is considering the future of Eskimo societies in relation to Arctic development, I will speak of the "Native" people of Alaska, Indians and Aleuts, as well as Eskimos, since we are all subject. to the effects of the many changes brought to our ancient lands through industrialization and technological advances. Furthermore, if the Eskimo is to be successful in trying to influence public policy in Alaska and in the United States Congress, it is necessary that we Eskimos work with the Indians and Aleuts, which, in fact, we are doing, as will be described later. Most of the world is now aware of the fact that vast deposits of oil have been found on the Arctic Slope of Alaska. It may be less well known that there is presently a great controversy as to whom that land and other lands actually belong. Since Alaska is the homeland of 55,000 Eskimo, Indian, and Aleut people; and since the land has never been specifically taken from by act of the United States Congress, or in battle, or by abandonment; we declare, indeed, proclaim, that by reason of historic use and occupancy, this is our land. In order to see our problem in accurate perspective, one must know the historical approach of the United States in dealing with the Indians of the main body of what is now the United States, what necessitated the encroachment of Indian territory, how the acquisitions took place, what the Indians received, and why it is that our present situation is so different in approach and in substance. The American Indian; Theory of Indian Title The American colonists came in search of a new life. They were not numerous and had to depend, to some extent, on the good will of the American Indian. Following the separation of the colonies from England, the new government had to deal with the Indian tribes as separate nations. They signed treaties with them and negotiated with them as equals. However, the number of Americans increased greatly and the pressures of settlement created greater demand for lands held by the Indians. Consequently, the Indians resisted American efforts at gaining more land, since they did not care to be pushed further west, and the period of the Indian Wars took place. Being numerically inferior and having less firepower, the Indians were defeated and had to cede large areas of land to the United States. Usually a small area was left to each tribe for its use and held in trust for them by the federal government. Today, the Indians of the mainland hold only 50 million acres of land, and it is the poorest land in the nation. The Indians, however, have been allowed access to the courts to sue the federal government for compensation of the land they lost, whether in battle or by act of Congress. In court the Indians have had to prove that they had "Indian Title" to the land, that is, that they used and occupied the entire claimed. They have had to prove that this land taken from them at a particular time. Once proved,compensation was paid to them for the taking, with compensation based upon the value of the land at the time of taking. The United States set up the Indian Claims Commission for the sole purpose of trying to pay money for depriving the Indian of his lands. To date, about 251 million dollars has been paid to the Indian tribes., The litigation usually takes years and pits the Indian against the federal government. The compensation for millions of acres of is usually a small sum, when compared with the true value of the land. It should be noted that the United States Constitution reserves to the federal government the responsibilities of dealing with the Indian tribes and the United States through executive order. Tribe after tribe succumbed to the power of the United States. The Indian could not protect his land. How did the Eskimo fare? What about the Aleut and Indian in Alaska? The Arrival of the Russians; Treatment of the Natives The Russians first sighted the Alaskan land mass in 1741. At the time of their arrival, it is estimated that there were about 74,000 Alaskan Natives. Russia wanted the sea otter, the fur seal and other resources of our lands. There was little penetration into the populous portions of the giant territory. Ports were established and trade ensued. The Aleuts were subjugated and made to gather food and work for the Russians. The Russians were under orders not to move into new territories among the Eskimo and Indian without consent. In practice, this was generally ignored. Nevertheless, the Russians exploited Alaska from 1741 to 1867, and by the time of the transfer to the United States there were about 35,000 Native people in the territory.2 The Treaty of Cession; 1867 Without consultation with the Eskimo, Indian, and Aleut people, the Russian government, for 7.2 million dollars, sold Alaska to the United States. Russia was in a war in the Crimea and was in danger of losing Alaska to other countries. The treaty of Cession did not provide for the citizenship of the Native people as it did for the white inhabitants. Section 3 of the Treaty stated that, "the uncivilized Native tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country."3 There was no confirmation of title to lands used and occupied by the Native people. Among some Natives there was discontent, but as the historian Bancroft put it:
There was not then, nor has there ever been any agreement by the Eskimo, Indian and Aleut people to the extinguishment of their ownership of lands in Alaska. At the time of the sale there were about 400 whites in Alaska; for all practical purposes, Alaska was still Native land, but encumbered by the law between nations following "discovery" and the transfer of money. The Organic Act of 1884 The Organic Act of 1884 was passed by the U.S. Congress in response to the clamor by whites, who needed to receive title to lands upon which they had discovered gold, and for the purpose of establishing civil government. Military detachments had governed the territory 1867 and 1884. This Act is the first specific pronouncement by the United States regarding the land of the Eskimos, Indians and Aleuts. It provided in strong terms for the protection of Native land rights:
Although limited legislation has been enacted to allow for the acquisition of title by individual Natives or villages, there has not been specific congressional action to determine completely the extent of Native Use and occupation" and whether we should be granted title to those areas. Statehood Act; The Built in Conflict By 1959, Alaska's total population had grown to about 200,000 persons, including about 43,000 Eskimos, Indians and Aleuts. The Alaskan population sought and received Statehood. The Constitution of the newly admitted State of Alaska provided protection to the Native people by stating that:
There was hope that the Act of Admission to Statehood would dispose of the Native land issue, but it did not:
The new state allowed the Congress to retain jurisdiction over the disposition of the Native Land rights issue. But a potential conflict was created when the Congress authorized the new state to select 130 million acres from the land mass of Alaska, land that was being used and occupied by Native people. How could the new state, on one hand, disclaim all right or title to our land and at the same time be allowed to select it under another provision of the Statehood Act? This issue is being tested in the courts and it is the Native position that the Native title has not been specifically extinguished and the State must await congressional action to determine further the allocation of lands between the State and the Native people. The Eskimo, Indian and Aleut populations were adversely affected first by the Russians, who came in search of valuable furs, then by the whalers and fishermen from ports around the world, and beginning in the 1890's, for several decades, by fortune seekers during the great gold rush. Because of the vast influx of foreigners, the Native people suffered disease and later, starvation due to the taking of much game and fish that the villagers utilized. Furthermore, the Native people were not citizens. They could not hold land or stake mining claims. Consequently, the Native people were pushed off valuable lands that they used and lived on, because they did not hold deeds or other written recognized evidence of ownership. To this day, so little attention has been paid by government officials to the need for formal ownership of land by the Native people, that only a tiny fraction of the privately held land in Alaska is owned by first inhabitants; of the State's 375 million acres,Alaska Natives possess fee title to only 500 acres.8 As a result, in part, of the inability of the Native to hold title to land, or to acquire title, economic development has taken place, but little benefit has accrued to the Eskimo and Indian people. This has been true of the gold rush period, the period of copper, tin and other minerals, and it will be true of the oil era, unless a change is brought about through federal legislation. It is just such action that the Alaska Federation of Natives is seeking to promote, and is the major reason for its creation. The Alaska Federation of Natives As the State of Alaska began to make its first selections of land under the State,hood Act, it was plain that these selections were being made in areas used and occupied by us, the Native people. As a consequence, village councils began to protest the State selections and appealed to the Secretary of Interior (who is manager of America's public lands, and "guardian" of the Native people) to stop the granting of Native-claimed lands to the State. Regional organizations of Native villages sprung up and, in a unified manner, claimed whole regions which were used and occupied by the village people This process continued and virtually the entire state was blanketed by Native claims. The Secretary of the Interior was initially at a loss as to what should done in view of the unclear legal directions provided in the Act of Admission to statehood and his role as Guardian" of the Native people. At this point time, the Alaska Federation of Natives was organized. The Alaska Federation of Natives emerged as moving force in 1966 because of the threat to Natives. Initially the Federation consisted of 19 regional and village groups. It presently is a vehicle through which the various regional groups are pushing for a settlement. The creation of the Federation changed the political face of Alaska. Eskimos, Indians and Aleuts comprise about 30 percent of the voting public in Alaska. The year 1966 marked a turning point for the Native people, in that this was the first time in history we had a unified effort to promote an equitable land settlement, and organized to change public policy that was adverse to us. The Federation was seen by the political leaders of the State as a vehicle with which they could work to become elected. In fact, 1966 was the year the pre, sent Secretary of the Interior was elected Governor of Alaska, in part, by appealing to the Native vote. The Federation now has programs in economic development planning, on-the-job training, health care and village leadership training. The Land Freeze The Federation immediately began to work for a halt to disposition of land to the State, until the U.S. Congress could make a determination regarding Native rights to the land. Of course, the State continued to seek to secure land for sale and development. Secretary Udall ordered the Bureau of Land Management, an agency in the Department of the Interior, to cease processing of applications for patent in lands that were being claimed by Eskimo, Indian and Aleut people. This came to be known as the "land freeze." This administrative order was later formalized by Secretary Udall, by withdrawal of all Alaskan lands from disposal to the State, or to any others, until the U.S. Congress has an opportunity to act on the matter. But the "freeze" will be lifted at the end of 1970, if no action is taken. The importance of the "land freeze" to the Native people is that it prevents anyone, including the State, from taking lands that may be granted to villages in a congressional settlement. Furthermore the pressure for a settlement continues on all parties so long as the status quo on land disposition remains. The Native people, the State, the Interior Department, and the Committees of Congress are all actively working toward a settlement. Were it not for the "freeze," the State would go its merry way selecting Native-claimed lands, and would not lift a finger to help us obtain justice, unless some enlightened administration saw a value in doing so. The Major Proposals Before the U.S. Congress Three legislative proposals are now pending before the United States Congress. Before this year ends, it is likely that in one house of the Congress, the Senate, the committee considering the land claims will have completed its work, and a bill will have begun its way to becoming law. The first proposal, and the one to which the Alaska Federation of Natives and the Department of the Interior have proposed amendments, is based upon elements of a legislative settlement suggested by the Federal Field Committee, a small federal research organization in Alaska. This bill includes conveyance of one township of land (23,040 acres) to each of 209 listed Native villages, payment of 100 million dollars from funds appropriated by the Congress in a lump sum, and payment of a ten percent share of the revenues derived from federal lands within Alaska, and outer continental shelf lands off the shore of Alaska, for a period of ten years. (It is important here to understand that the State of Alaska now shares in 90 percent of the revenues from on, shore federal lands in Alaska.) All mineral rights under the village townships are to be given to, and administered by, a statewide Native corporation, which is also charged with the management and disbursement of appropriated funds and shared revenues. During its first ten years the corporation, whose stockholders are to be all Alaska Natives, is to be rather closely controlled. At the end of that time, it is to become an ordinary business corporation with its shares of stock freely bought and sold. Very important to the content and form of any legislative proposal is the viewpoint of the executive branch of the national government. This viewpoint is expressed in an amendment submitted by the Secretary of the Interior, Walter J. Hickel. This provides for conveyance of one township of land to each of 13 named villages, now located in a National Forest, and two townships (46,080 acres) of land to each of an additional 192 villages. Locatable minerals, that is, gold, silver, lead, zinc, etc., are also conveyed with the surface title to the land, but leaseable minerals, that is, oil, gas and sulfur, are retained by the national government. As compensation for Native land use rights extinguished in the past, and by this settlement, a total sum of 500 million dollars is to be appropriated by the Congress in twenty equal annual sums. The closely controlled, statewide, Native-owned corporation to administer funds is adopted in this proposal, but the period of its control is extended to twenty years. The proposal prepared by the Alaska Federation of Natives provides for either four townships (92,160 acres) or 500 acres of land per person, whichever is greater, for each of 242 listed villages as well as four sections (640 acres each) in each township in the state to the appropriate regional Native corporation. These conveyances include all mineral rights. As compensation, 500 million dollars is to be granted by the Congress, payable 100 million dollars the first year, and 50 million dollars each of the eight years following. Because much of the land of Alaska is still occupied and used by Alaska Natives, as their ancestors used the land, it is also proposed that two percent of the proceeds from the lease or sale of federal lands in Alaska be paid to Alaska Natives, for the extinguishment of this present right of use and occupancy. It is this part of our proposal, and its extension to the lands, which the State of Alaska is entitled to choose under the terms of the Act admitting Alaska to the United States as a state, which some say is alienating many non-Native Alaskans. There are other obvious differences of degree in the three proposals: between five million acres and 40 million acres; between 500 million dollars and 500 million dollars plus a two percent royalty in perpetuity; between ten and twenty years of governmental supervision. But, from one of these proposals, or from parts of all of them, it is anticipated there will emerge the terms of settlement of a century-old claim. Consequences of a Poor Settlement or No Settlement The Native people of Alaska have had to be realists in dealing with the state and concerning the land issue. In terms of theory relating to Indian Title, we know still retain the land, but only Congress can or extinguish, our ownership. Our initial reaction in 1966 was to ask for confirmation to all lands we use and occupy today. But we knew this was impossible under the political circumstances. Our position has been to go for what we feel is within reason, but not to buckle when pressure is brought to bear before we reach Capitol Hill. Great pressure can be exerted to try to force us into going through the courts, which is a costly and lengthy route to go, and would result in no land grants and small money amounts. But, we feel that a Congressional settlement is within reach, and are putting our efforts in that direction. The Senate and House Interior and Insular Affairs have both been to Alaska for hearings, and we have traveled to Washington (as did the Indians a century ago) to present our case. We are testing the American political system. We have found it responsive up to this time, and have hope. We know the history of our country in dealing with the American Indian, and want to see a final chapter not written in blood, or in deception, or in injustice. We are not numerous, and recognize the pitfalls in securing this unprecedented kind of legislation. We are seeking an alternative to wardship. We seek to offer alternatives to Eskimo and Indian people, rather than a one-way ticket into the confused mainstream. We feel our people cannot convert to a cash economy overnight and will continue to fish and hunt for many years. On the other hand, we see that the young Natives seek education and new places. These should be available. We want to be able to live longer and more decently, without having to stoop in indignity because of a degrading welfare system. We feel this is possible, if we can secure the kind of land settlement we are proposing. If there is no settlement, or a poor one, we will have a generation of leaders, who fought for years to protect their land and lost. This may start a chain of events, in which it is seen by future generations of Natives as a disaster for us, an injustice that will mar the relations between Natives and whites for many years. It may bring defeatism to the people, and will prevent us from becoming an integral part of Alaska's social and economic development. Our present political influence will diminish and the efforts to develop our communities will falter. Such would be the consequences of a poor settlement or no settlement. Not only that, but America will have lost an opportunity to right old wrongs and for once, allow the first Americans a fair deal. William Hensley is an Inupiaq from the NANA Region. He was instrumental in focusing attention on the issue of Alaska Native land claims. He was also a key figure in organizing the Alaska Federation of Natives, the first statewide Native organization. He and other Alaska Natives within AFN fought for the settlement of land claims, which resulted in the Alaska Native Claims Settlement Act. Today, William Hensley is the Chairman of the Board for United Bank of Alaska and is President of NANA Regional Corporation. He continues to play an active role concerning state and Alaska Native issues. Reprinted courtesy of the Department of Native Studies, the University of Alaska, Fairbanks.
Footnotes for "Why the Natives of Alaska Have a Land Claim" William L. Hensley 1. Annual Report of 1968, Indian Claims Commission, 1968, p. 12. 2. Alaska's Population & Economy Statistical Handbook, Vol. II, 1903, p. 7. 3. Treaty of Cession, 1867, Section 3.
5. The Organic Act of 1884, May 17, 1884-23 Stat. 24. 6. Constitution of Alaska, Art. 12, Sec. 12. 7. Alaska Statehood Act, 1959, Sec. 4
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