Between Empires and Frontiers Alaska Native Sovereignty and U.S. Settler Imperialism

Home , Anthony Dimond, Daniel Akaka, Elizabeth Peratrovich, Legal status of Alaska, Lomen Company, Territory of Alaska

A Dissertation SUBMITTED TO THE FACULTY OF THE UNIVERSITY OF MINNESOTA BY

Jessica Arnett

IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

Jean M. O’Brien, Barbara Welke

March, 2018

Acknowledgements

My time in academia, first as an undergraduate, then an adjunct instructor, and finally as a graduate student, has spanned nearly two decades and involved numerous cross-country relocations. I cannot begin to assess the number of debts that I have accrued during this time, as friends, family members, devoted advisors, and colleagues supported the winding trajectory of my academic life. I am grateful for my committee and the years of insight and support they have provided for me as I developed my research questions and attempted to answer them. I am deeply indebted to my advisors, Jean O’Brien and

Barbara Welke, who have tirelessly dedicated themselves to my project and have supported me through my many achievements and disappointments, both academic and personal. Jeani is an amazing historian who throughout my six years in Minnesota has continuously asked critical questions about my project that have triggered new ways of understanding what I was perceiving in the documentary record and how I eventually came to understand Alaska. Her immediate support and tireless enthusiasm for my radically different framing of Alaska’s relationship to the contiguous states and what that meant for Alaska Native sovereignty struggles encouraged me to continue theorizing settler imperialism and to have confidence that my research was not only worthwhile, but path breaking and relevant. Jeani’s feedback every step of this project inspired me to ask difficult questions and to work diligently to find the answers in spite of how overwhelmed I might—and many times did—become along the way. Barbara’s confidence in my project’s relevance to numerous fields and her diligent feedback and encouragement has had a tremendous hand in the development of this project as well. As a legal historian, she perceived my work in ways I could never have imagined, which

compelled me to think even more critically and broadly about the work I was doing. I initially did not know the focus on law that my dissertation would assume, and without her expertise I would not have come to see empire in Alaska—and elsewhere—in the same ways I do now. Both Jeani and Barbara were also fundamental to my survival of the turbulent times graduate student life inevitably brings, and the dedication they showed to me and all of their graduate students has inspired my own sense of responsibility and dedication to my students, current and future.

I am extremely grateful for the serendipitous meeting of Juliana Hu Pegues at

Minnesota. A fellow Alaskan and scholar of Alaska Native Studies, her mentorship has been imperative to my research and my development as a historian. Her theoretical expertise and her own insights on Alaska have shaped this dissertation in truly amazing ways, and her willingness to include me on conference panels and in scholarly circles have been truly formative to my research and matriculation. Over all, I am immensely thankful for her friendship, and I am so glad that her academic trajectory brought her back to Minnesota. I am also grateful to David Chang, who told me once to “let the mess be the story itself.” I thought often of that advice while wading through documents and piecing together the narrative that this dissertation would come to tell. I am thankful to

Kat Hayes, whose directed readings with me on race formation and anthropology gave me invaluable tools for teasing out the ways in which ideas about race informed policy in

Alaska and how they varied in important ways in the territory as compared to the contiguous states. And I am also greatly appreciative for Bianet Castellanos. She has pushed me to think more expansively about settler imperialism and her insight and

questions about how settler imperialism fits into the larger story of U.S. empire and expansion will guide this project moving forward.

At the University of Minnesota I had the great fortune to engage with an outstanding group of graduate students and faculty in the American Indian and

Indigenous Studies Workshop. These weekly meetings formed the bedrock of my experience at Minnesota and the dynamic, inclusive, intellectual environment contributed immensely to my development as a scholar. The collaborative nature of this workshop, and the unyielding support of its members made so many of the hardships of graduate school bearable, and led to the development of lifelong friendships. Thank you Kasey

Keeler, Katie Philips, Bernadette Perez, Amber Annis, Jimmy Sweet, Mike Dockry,

Samantha Majhor Alton, Sasha Suarez, Joseph Whitson, and many others for your feedback and friendship. And thank you to my 2014-2015 AIISW co-chair, Jesús

Estrada-Pérez. Rest in power, friend.

I would also like to acknowledge the wonderful funding I received as a graduate student. I am especially grateful to the Council on Library and Information Resources fellowship. Without this year of research, that included archival institutions across the country, this dissertation would not have been possible. Likewise, the time and travel made possible by the Newberry Library Consortium in American Indian Studies facilitated fundamental research in both the Newberry Collections in Chicago, and the

National Archives in Seattle. Additionally, my time at NCAIS lead to lively intellectual discussions and connections with fellow Alaska Native Studies scholars, which have continued to influence my scholarship and enrich my academic career. I am indebted to the Harry S. Truman Library and Archives and the Dwight D. Eisenhower Presidential

iii

Library for their generous contributions, and I’d also like to thank the Western

Washington University Center for Pacific Northwest Studies for their generous support of my research and to the discovery of rich archival material that I would not have encountered without their award. The History Department graciously provided yearly travel funds, and awarded me the Graduate Research Partnership Program funding for summer research and collaboration with faculty. I am also grateful to the Graduate

School for the Thesis Research Travel Grant, and the University of Minnesota Doctoral

Dissertation Fellowship, which provided an entire year to devote to writing. All of these funding awards account for tremendous strides in the completion of this dissertation.

Numerous institutions and individuals made this dissertation possible. Thank you to the staff and archivists at the Alaska State Archives, especially Abby Focht who took me running in the mountains of Juneau. You made my time in Juneau truly an adventure.

Thank you to the Sealaska Heritage Institute, especially to Chuck Smyth and Heather

McClain for their welcoming assistance.

I am also grateful to friends and colleagues I have made along the way. Thank you Kasey Keeler for your friendship and mentorship. Our cookouts, sleepovers, happy hours, and skype conversations in addition to your feedback on countless dissertation chapters, funding and job applications, and conference papers have been a cornerstone of my graduate school experience. Evan Taparata, thank you for the frequent beer breaks, skype happy hours, and conversations. I am grateful for your friendship as we celebrated the joys and navigated the disappointments of graduate school these past few years.

I cannot express how grateful I am for the friendship of Michelle Stolz whose unyielding spirit, love of running, and infectious personality inspired me to take on

challenges that I never thought possible and that have forever enriched my life. Running has been a fundamental practice that ensured my survival through the demands and stresses of graduate school, and she helped me develop my passion for the sport and my ability to strive to complete ever-increasing distances with joy in my heart. Through her, I have an amazing group of running friends who have all inspired me to run wild and be free.

I am forever indebted to my amazing and generous family. Thank you to all of the aunts and uncles and cousins who fed me, let me stay in their homes, and welcomed my dog(s) to stay as well while I traveled the country for research: Ken, Lucy, Mary, Bob,

Sue, John, Cindy, Dale, Michael, Kendall, Michelle, Chris Newell, Chris Bowser, and

Ben. Juanita, who bought my books every semester of undergraduate study and provided a home away from whatever location I happened to be in at any given time, deserves special mention. Juanita, I am immensely grateful for all you have done for me throughout my life. Thank you to Doug Heinlein, in whose home I stayed while researching in Seattle. Those trips provided a lifetime of stories in addition to your generosity. I am also thankful for my sister Kirsten and nephew Milo. They bring such joy and laughter to my life, and I am glad to have been able to visit so often the last few years and for the phone and video conversations in the interim. My parents and stepparents also deserve special mention. Thank you to Wendy Bowser Anderson and

John Arnett for always believing in me and raising me with a hunger for social justice. I know now in my adulthood what a gift it is to have parents like you, and I cannot thank you enough for all of the opportunities that you have given me. Thank you to Paul

Anderson and Maggie Arnett for your support and for loving my parents, my siblings, and me.

Thank you, Skyler York, for your unconditional love and support throughout this rollercoaster of a ride. I couldn’t have done this without a supportive and loving partner.

Your kindness, generosity, compassion, and genuineness inspire me daily.

Finally, thank you Phoebe, for pulling me through some of my darkest hours in this long journey and for being a constant source of joy. Your companionship made all the difference. And thank you Kenai, for stepping in at the right time. I’m looking forward to our next adventure.

I dedicate this dissertation to my parents, Wendy Bowser Anderson and John Arnett, and my husband, Skyler York.

vii Table of Contents

List of Images...... ix Introduction………………………………………………………………………………1 Chapter 1: “Not Indian Country in Any Other Sense”: Native Sovereignty, Law, and the Development of Settler Imperialism in the District of Alaska..…………….27 Chapter 2: Reindeer in Trust: Indigeneity, Race, and Constructions of “Wardship,” in the Struggle for Native Economic Self-Determination……………………...…….67

Chapter 3: “A Special Legal Problem”: William Paul Sr. and the Limits of Settler Imperial Law………………………………………………………….……………….127

Chapter 4: “Bound together by a common tragic experience”: “Foreign Indians,” Refugees, and Aleut Internment in Framing Alaska Through “Civilized Settlerism”……………………………………………………………………………..169

Chapter 5: “The Indians of Alaska were not dealt with as tribes”: Civil Rights, Citizenship, and Alaska Native Sovereignty…………………………………………225

Chapter 6: Chapter 6: “It is a state and it is not a state”: Native Sovereignty, Land, and “Incorporated” Territories………………………………………………………266

Conclusion: Conclusion: William Iggiagruk Hensley and Settler Imperialism in the

Statehood Era………………………………………………………………………….324

Bibliography………………...…………………………………………………………340

viii List of Images

Image 1 Alaska Native Claims Settlement Act Regional Corporations, National Park Service ...... x

Image 2 Alaska Native Language Groups, Alaska Native Language Center, University of Alaska Fairbanks ...... xi

ix Figure 1 Alaska Native Regional Corporations, National Park Service

Figure 2 Alaska Native Language Center, University of Alaska Fairbanks

Introduction

On December 18th, 1971, President Nixon signed into law the Alaska Native

Claims Settlement Act (ANCSA). The settlement created twelve for-profit, Alaska Native regional corporations among which the act divided approximately 45.7 million acres of the state of Alaska’s 375 million total acres. The Act also established over 200 village corporations to which were allocated 22 million acres of surface estate lands from the

45.7 million distributed to regional corporations. In addition to land, the Act allocated

$962.5 million dollars as start-up capital to the regional corporations.1 (See Figure 1) The corporations were intended to administer the settlement, manage land ownership and to generate revenue and economic opportunities. Alaska Natives were enrolled as shareholders in the village corporation in which they lived and as shareholders of the regional corporation in which the village was located.2 All Alaska Natives alive on

December 18, 1971 received one hundred shares of stock in their respective corporations.3 Not only was ANCSA the largest land claims settlement in U.S. history at the time, but it was also fundamentally distinct from any land claims settlement between the federal government and indigenous tribes in what is now the United States before or since.

1 Case and Voluck, Alaska Natives and American Laws, 3rd Ed., (Fairbanks: University of Alaska Press, 2012) 165-198. Alaska Natives who did not reside in villages but rather lived in Alaska’s cities were enrolled only in the regional corporations. A 13th corporation was created later for Alaska Natives who lived outside of Alaska. Under the settlement, 70% of revenue generated by the regional corporations from timber or subsurface resources would be divided annually among the 12 land owning corporations on a per capita basis, and 50% of that revenue would be apportioned to the village corporations under their respective regional corporation. 2 The term “Alaska Native” includes all of the indigenous inhabitants of what became Alaska. This includes the Iñupiaq of northern arctic Alaska, the Yup’ik western Alaska, Siberian Yup’ik of St. Lawrence Island, the Aleut of the Aleutian Islands, the Alutiiq of Kodiak Island and the Alaska Peninsula, the Athabascans of Interior Alaska, the Eyak of south central Alaska, and the Tlingit, Haida, and Tsimshian of southeast Alaska. See Figure 2. 3 Initially, Alaska Natives born after that date were not entitled to receive stock except through inheritance or court order. See Case and Voluck, Alaksa Natives and American Laws, 170. 1

ANCSA was an extremely complex piece of legislation and represented the culmination of a nearly 100 year history characterized by what legal scholars David Case and David Voluck describe as a “theoretical uncertainty about the legal status of the

Indigenous Peoples of what is now the state of Alaska.”4 Beginning in 1867 when the

United States purchased the territory from Russia with neither Alaska Native nor

Congressional approval, to 1959, when Alaska was admitted to the Union as the 49th state, this dissertation takes as its focus the nearly 100 years of Alaska’s tenure as a military district, customs district, and an incorporated territory. I trace the ways territorial and federal officials, white settlers, and corporate interests used law to perpetuate these

“theoretical uncertainties” in the legal relationship of Alaska Natives to the U.S. federal government, ultimately creating a distinct legal category for Alaska Natives and establishing Alaska as a distinct legal space that is fundamental to understanding the long sweep of U.S. history and its national and international aims. The history of these uncertainties and ambiguities and their application in law and policy, most importantly informed the ways Alaska Natives strategized in their struggles for their rights as indigenous people and nations to land and sovereignty in what became the state of

Alaska.

Just as ANCSA is profoundly different from any other land claims settlement with indigenous people in the U.S., so too were the nearly one hundred years of law and policy that characterized U.S. colonialism in the territory. Of the 567 federally recognized tribes in the United States, 229 of them are in Alaska. Unlike in the contiguous states, the federal government never signed treaties with Alaska Natives and the Bureau of Indian

Affairs refused jurisdiction to what it considered to be “races of a questionable, ethnical

4 Ibid. 165. 2

type” occupying a distinct position from tribes of the continent.5 Today, Alaska Natives remain distinct from American Indian tribes within federal Indian policy. I argue that this divergence in policy stems from alternate framings of Alaska as either the “last frontier” of the American West or as the first experiment in U.S. overseas imperialism throughout its tenure as a territory. As the first non-contiguous territory, Alaska was central to both nineteenth and twentieth-century settler colonial visions of frontier settlement and to U.S. imperial objectives. As such, the acquisition of Alaska marked an important break with previous patterns of U.S. territorial expansion and engagement with indigenous people, generating tensions in the nature of Alaska’s relationship to the nation proper and producing legal ambiguity in the minds of territorial and federal officials, lawmakers, and corporate interests, regarding the legal status of Alaska Natives in relation to American

Indians. The relationship of Indian nations of the contiguous states and territories had been characterized by ongoing nation-to-nation negotiations grounded in treaty-making and the recognition of indigenous sovereignty by the U.S. legal system and the Supreme

Court. Therefore, classifying Alaska Natives as outside this legal framework had profound consequences.6 By claiming that Alaska Natives were neither racially nor legally similar to American Indians, these officials and the corporate entities and settlers that sought to exploit Alaska’s resources and appropriate land for settlement could—and did—refuse recognition of Alaska Native collective land ownership and political and economic sovereignty implied by Indian status.

5 Francis Walker to C. Delano, March 14, 1872, House Ex. Doc. 197, 42nd Cong., 2nd Sess. See also Juliana Hu Pegues, “Interrogating Intimacies: Asian and Native Relations in Colonial Alaska,” University of Minnesota Doctoral Dissertation, August 2013. 6 The sovereignty of Native nations is inherent, predating that of the U.S. While federal and state governments continuously undermined Native sovereignty, the U.S. legal system has generally accounted for its existence. See Wilkins and Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law (Norman: University of Oklahoma Press, 2001). 3

I argue in this dissertation that the ability of these officials to continue land and resource appropriation in Alaska became increasingly contingent on their ability to maintain ambiguity in the legal status of Alaska Natives. In fact, maintaining these legal tensions became a fundamental technique of colonial and imperial exploitation, and the legal apparatus that developed as a means to meet these ends constituted a distinct legal formation that I call settler imperialism. While a seemingly paradoxical phrase, I argue that settler imperialism constituted the particular way that the expectations and practices of settler colonial governance and imperial ambitions converged in Alaska, becoming deeply entangled throughout the nineteenth and twentieth centuries. This entanglement of contradictory characterizations of Alaska, then, came to be expressed in the debates over the relationship of Alaska Natives to the federal government in which territorial and federal officials questioned whether or not Indian law as applied to Indians of the continent also applied in Alaska. If Alaska were considered an overseas imperial experiment, these officials could consider Alaska Natives as outside existing frameworks of Indian law that had, in important ways, recognized collective sovereignty and Native nationhood. Without the recognition of a nation-to-nation relationship with Alaska

Natives, these officials could avoid negotiating with Alaska Natives over land and resources by claiming that aboriginal title did not exist in Alaska.

In his seminal essay, “Settler Colonialism and the Elimination of the Native,” scholar Patrick Wolfe defines settler colonialism as “a structure not an event,” in which

“settler colonizers come to stay.” He informs us that “territory is settler colonialism’s specific irreducible element,” and that with this one objective in mind, the appropriation of indigenous land is achieved through various means including the “break-down of

native title into alienable individual freeholds, native citizenship, child abduction, religious conversion, resocialization in total institutions such as missions or boarding schools, and a whole range of cognate biocultural assimilations.”7 Settler colonialism

“destroys to replace.” Alaska Natives were subjected to all of these settler colonial violences. However, when it came to land in Alaska, territorial and federal officials attempted to bypass typical negotiations associated with the appropriation of Native land such as the treaty process by questioning whether or not Alaska Natives held collective aboriginal title similar to that which existing legal frameworks had recognized in the contiguous states. They did this by embracing Indian Commissioner Francis Walker’s conclusions that Alaska Natives were not racially or Constitutionally Indians, and therefore should not be collectively recognized as tribes. Since tribes were what the federal government recognized as the land owning political unit of Native nations, the classification of Alaska Natives as other than “American Indian” had profound implications for Alaska Native land and sovereignty. As non-natives sought to exploit

Alaska’s resources, territorial and federal lawmakers produced a proliferation of legislation aimed at maintaining ambiguity in the legal status of Alaska Natives and their land. These initial distinctions thus became codified in law, producing “Alaska Native” as a distinct legal and racial category that while related in important ways to “American

Indian” has historically been differentiated in the application of policy and in the enumeration of indigenous people in the U.S. census along with “Native

Hawaiian/Pacific Islander.”

These distinctions were the result of the ways that federal officials located Alaska

7 Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research Vol. 8, No. 4 (December, 2006) 387-409. 5

outside of what was considered “properly national territory.” Imagined to have been the

United States’ debut onto the global stage of empire building, Alaska’s non-contiguity disrupted the geographical cohesion of the settler colonial nation-state and confounded typical practices that had characterized U.S. settler colonialism in the contiguous states.

Indeed, upon the purchase of the territory from Russia, Secretary of State William

Seward had reflected that while he hoped Alaska would become “a state or many states,” he also imagined the territory as “our stepping stones to Asia,” indicating a function of the territory as a means to facilitate even further imperial ambitions. I am using a definition of imperialism as the acquisition of overseas dependencies and the relationship of those dependencies with the metropole, or “Mother Country,” as one characterized by economic domination and resource extraction, and/or political and military dominion by the metropole as the primary objective rather than occupancy and settlement.8 Imagining

Alaska as an imperial space and Alaska Natives as racially and legally distinct from

American Indians implied a different set of legal obligations, namely rejecting the recognition for Alaska Natives of American Indian nationhood and collective land ownership that, while continuously contested and undermined by the U.S. legal system, had been codified as precedent in the contiguous states through treaty-making and subsequent recognition in the courts. The uncertainty surrounding the nature of the relationship of Alaska to the nation proper led officials to likewise characterize the legal status of Alaska Natives as one of uncertainty as well, with profound implications for

Native nationhood and collective land ownership. Instead, they crafted policy toward

Alaska Natives that either bypassed, or relegated to some imagined future date of

8 Robert J. C. Young, Postcolonialism: An Historical Introduction, (Massachusetts: Blackwell Publishing, 2001), 26. 6

reconciliation, the exact nature of the relationship of Alaska Natives to the federal government. Thus, the entanglement of competing and contradictory settler colonial and imperial expectations, law, and policy simultaneously generated and perpetuated the tensions in the legal status of Alaska Natives and the territory itself and allowed extractive and settler colonial practices to commence and continue. Because these tensions were the product of Alaska’s territorial status, the business of maintaining

Alaska as a territory was part and parcel of settler imperial processes. For this reason,

Alaska’s tenure as a district and subsequent “incorporated” territory lasted for an astonishing ninety-two years.

Central to debates among territorial and federal officials, lawmakers, and corporate interests were the legal constructions and relationship among citizenship, sovereignty, and wardship/guardianship status as applied to indigenous peoples. Specifically, the way that the Supreme Court wed Native sovereignty to guardianship in Chief Justice John

Marshall’s infamous decision in Cherokee Nation v. Georgia (1831) underscored territorial and Congressional consideration of the legal status of Alaska Natives.9 Article

III of the 1867 Treaty of Cession, by which the federal government had purchased

Alaska, stipulated that “the inhabitants of the ceded territory…with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.”10 Thus, citizenship—rather than nation- to-nation negotiations, the trust relationship, and legal constructions of domestic dependent nationhood—became the means by which Alaska Natives negotiated their legal status to the federal government. In this vein, citizenship also became a fundamental

9 Cherokee Nation v Georgia, 30 U.S. (5 Pet.) 1 (1831). 10 Treaty of Cession, 1867. 7

argument against classifying Alaska Natives with American Indians and therefore invoking nationhood, sovereignty, and the trust relationship. In arguing against the administrative recognition of Alaska Natives as American Indians, Commissioner of

Indian Affairs Francis Walker argued that the alleged Asian origins of Alaska Natives had bestowed “mimetic gifts and [a] high degree of mechanical dexterity.” He contended that “these are qualities characteristic of the Oriental,” and therefore Alaska Natives ought not be classified as American Indians. Because he considered Alaska Natives more advanced, Walker worried that if they were administratively (and racially) recognized as

American Indians, they would be Constitutionally disqualified from citizenship . As articulated by scholar Juliana Hu Pegues, Walker’s logic of Asian origins of Alaska

Natives had “ironically…yielded potential citizenship for Indigenous subjects while

Asian origins for immigrant workers foreclosed such possibilities.”11 Furthermore,

Pegues argues that “what Walker’s rationale both conceals and reveals, however, is that by refusing Alaska Natives status as Indians, he limited the capacity of Alaska tribes to make land claims as nations of people.” (emphasis in original) In this way, “Walker’s administrative refusal located the rights, and therefore political strategies, of Alaska

Natives as distinct from other Indigenous Americans.”12

Because of Walker’s distinctions, Alaska Natives were not considered “wards” of the federal government. Many Alaska Natives sought U.S. citizenship as a means to secure their rights through enfranchisement and the court system, but when they made claims to political sovereignty, collective landownership, or protection of their rights as Native

11 Condition of the Inhabitants of Alaska, March 14, 1872, 42. Cong., 2nd Sess., Ex. Doc. No. 197, 3-4. Juliana Hu Pegues, “Interrogating Intimacies: Asian American and Native Relations in Colonial Alaska,” Doctoral Dissertation, University of Minnesota, August 2013, 56. 12 Juliana Hu Pegues, “Interrogating Intimacies: Asian American and Native Relations in Colonial Alaska,” Doctoral Dissertation, University of Minnesota, 2013; pp. 54-58. 8

people to specific resources, territorial and federal officials argued that recognizing and implementing federal obligations associated with those protections would serve to make wards out of citizens (or what they considered potential citizens). For territorial and federal officials, the recognition of Alaska Natives as occupying a similar legal status to

American Indians could force the federal government to recognize Alaska Native collective political sovereignty and collective land ownership. This coupling of Native sovereignty to wardship and dependency status came to be the fulcrum over which territorial and federal officials, congressmen, corporate entities and Alaska Natives would leverage law and policy. In the minds of territorial and federal officials, recognizing a similar legal status of Alaska Natives and American Indians could potentially invoke obligations associated with wardship and guardianship within American Indian policy including that which compelled the federal government to protect and administer Indian land and to enhance tribal self-government. Taking into account the legal precedent set in the 1831 Supreme Court case Cherokee Nation v. Georgia, in which the court linked wardship with “domestic dependent” nationhood—a nationhood undermined by the U.S. legal system, but nationhood nonetheless.13 Fundamentally, then, withholding the recognition of “Indian status” was a way to deny Alaska Natives nationhood status, and thereby get at land through the disavowal of any potential trust obligation, Alaska Native political sovereignty, and the territorial integrity implicit in the recognition of nationhood.

While this sleight of hand presumptuously dismissed the sovereign status of Alaska

13 Cherokee Nation v Georgia, 30 U.S. (5 Pet.) 1 (1831). In this seminal case, Chief Justice John Marshall, writing the opinion of the Court, argued that the Cherokee Nation were not a foreign nation and could not bring suit under Article III Section II of the U.S. Constitution. Instead, he determined that Indian nations were “domestic dependent nations” occupying a position of “a ward to his guardian.” 9

Natives vis a vis American Indians, Alaska Natives also recognized a productive flexibility in the inability of the federal government to reconcile them within existing frameworks of federal Indian law and policy. They too leveraged this flexibility in shaping their relationship to the federal government as indigenous people and as U.S. citizens. In achieving specific objectives such as equal citizenship rights, inclusion within federal Indian policy legislation, or protection from white settlers and corporate interests, they alternately aligned their legal status as similar to or distinct from that of American

Indians. For example, in the early twentieth century Iñupiat reindeer herders called on the federal government to protect their exclusive rights to reindeer ownership from white corporate interests who encroached on their reindeer herding industry. They argued that like in the contiguous states, the federal government was obliged to protect their exclusive rights as Native people to programs that had been established solely for their benefit and welfare. Likewise, Tlingit attorney William Paul Sr. argued for Alaska Native inclusion in the New Deal Era Indian Reorganization Act (IRA), with the added caveat that the Act be applied in accordance with Alaska Native social and political structures that recognized villages rather than “tribes” as the organizational unit. While making claims to Indian status, these Iñupiat herders, Tlingit attorneys, and other Alaska Natives also understood the ways in which territorial and federal officials conceptualized legal constructions of Native sovereignty in terms of wardship and notions of “domestic dependent nationhood,” and they were careful to advance their claims to land, self- determination, and citizenship in ways that achieved recognition of their political sovereignty without (or to keep at a minimum) the limitations to that sovereignty that the classification as government wards could impose.

In this way, Alaska Natives not only engaged with settler imperial legal formations, but utilized these very ambiguities shaping those formations and their outcomes. Political scientist Kevin Bruyneel has argued that indigenous tribes in the contiguous states challenged assaults on their sovereignty by defining their relationship to the United States as one in which they straddle “the temporal and spatial boundaries of American politics, exposing the incoherence of these boundaries as they seek to secure and expand their tribal sovereign expression.” What he calls a “third space of sovereignty” represents

“sites of co-constitutive interaction among groups, governments, nations, and states where competing notions of political time, political space, and political identity shape the

U.S.-indigenous relationship.” By maintaining a third space of sovereignty, indigenous nations can disrupt the ways in which the settler state aims to restrict and undermine their sovereignty by “expos[ing] both the practices and the contingencies of American colonial rule.”14 Much like a third space of sovereignty, Alaska Natives utilized their ambiguous legal location as neither inside nor wholly outside U.S. legal frameworks as a site of power from which to assert sovereignty and make claims on citizenship and belonging.15

Because Alaska’s geographic location and non-contiguity with the continental U.S. placed it on the territorial fringes of empire, not only were Alaska Natives considered outside existing frameworks of law and policy that governed American Indian—U.S. relations, but the territory of Alaska itself was liminally situated in relation to contiguous states and territories. Thus, Alaska Natives, while maintaining an important location as simultaneously legally similar and dissimilar to American Indians, were not navigating an

14 Kevin Bruyneel, The Third Space of Sovereignty: The Postcolonial Politics of U.S.—Indigenous Relations (Minneapolis: University of Minnesota Press, 2007) xv-xvii. 15 Barbara Young Welke, Law and the Borders of Belonging in the Long Nineteenth Century United States (Cambridge: Cambridge University Press, 2010). 11

identical politics on the boundaries as articulated by Bruyneel. Within the U.S. settler imperial structure, Alaska Native nations resided in what—according to territorial and federal officials—constituted a particular kind of boundary in and of itself.

Simultaneously imagined as a continuation of the never ending frontier and as an overseas colony, Alaska represented a critical site within and functioned distinctly toward what legal scholar Christina Duffy-Ponsa identifies as “a wobble in the elaborate process of combined inclusion and exclusion, expansion and retraction, projection and limitation, intended for territories at the margins of the nation.”16 This distinction—the shifting of ground as a result of this “wobble”—is what rendered Alaska Natives illegible to the existing frameworks of Indian law and policy. While territorial and federal officials, lawmakers, and corporate interests alternately imagined Alaska as within or outside the bounds of “properly national territory,” they likewise imagined its inhabitants as alternately located inside or outside existing legal frameworks of the U.S. settler colonial state.

I argue that settler imperialism—the tensions generated by the entanglement of settler colonial and imperial practices and expectations—characterizes Alaska’s role in the project of boundary management. In this way, settler imperialism in Alaska had profound implications beyond the relationship of Alaska Natives to the federal government, and speaks broadly to the nature and history of “incorporated” territories.

While scholars have long examined the paradox of unincorporated territories, there is a dearth of literature that explores the ways “incorporated” territories functioned in the

16 Christina Duffy Burnett, “The Edges of Empire and the Limits of Sovereignty: American Guano Islands,” American Quarterly 57, no. 3 (Sep., 2005), 779-803. 12

broader structure of U.S. empire.17 Perhaps not studied in depth because of the assumptions that their ultimate and predetermined destiny was statehood, a closer examination reveals that “incorporated” status allowed for an important degree of flexibility that served U.S. hegemonic objectives. Thirty years prior to the 1898 acquisition of the U.S. territories of Hawaii, Puerto Rico, the Philippines, and Guam, the acquisition of Alaska marked an important shift in the conceptualization and legal construction of the U.S. nation-state, and subsequent federal administrations quickly recognized the benefits inherent in the flexibility of territorial status. For example, in

1946, the Department of the Interior released a publication intended to encourage settlement in the territory of Alaska. In its opening pages, the Department proclaimed that

“Alaska is as American as baked beans, hominy grits, and apple pie […] It is part of the

United States, like Wyoming or Alabama.” A charming phrase, no doubt intended to invoke the historical memory of pioneer adventures on the western plains along with visions of home conjured by American comfort food. However, the pamphlet’s claims were, in 1946, quite dubious. Alaska was not a part of the United States like Wyoming or

Alabama; it was an incorporated territory with a contingent and uncertain relationship to the United States.

This particular attempt to situate Alaska within the contours of the nation proper represents a deliberate effort on behalf of the Interior Department to encourage would be

17 For literature on U.S. empire, expansion, and unincorporated territories see Christina Duffy Burnett and Burke Marshall eds., Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution, (Durham: Duke University Press, 2001); Alfred McCoy and Francisco Scarano eds., Colonial Crucible: Empire in the Making of the Modern American State, (Madison: University of Wisconsin Press, 2009); Sanford Levinson and Bartholomew H. Sparrow, The Louisiana Purchase and American Expansion 1803-1898, (Lanham: Rowman and Littlefield Publishers, 2005); Bartholomew Sparrow, The Insular Cases and the Emergence of American Empire, (Lawrence: University of Kansas Press, 2006); Gerald L. Neuman and Tomiko Brown-Nagin, Reconsidering the Insular Cases: The Past and Future of the American Empire, (Cambridge: Harvard University Press, 2015). 13

settlers to fulfill the territory’s “promise” as “the last frontier” while dispelling Cold War

Soviet accusations that the United States, by holding noncontiguous territories, was engaged in the practice of colonialism while claiming status as a beacon of democracy and freedom. Less than a decade later, however, President Eisenhower’s own words revealed the utility of incorporated territories in the pursuit of U.S. international ambitions when he argued against statehood on the grounds that territories were “easier to use” than states in achieving domestic and international policy. Furthermore, just a few years prior at the outbreak of World War II, President Roosevelt, along with a number of federal officials, attempted to locate Alaska outside the nation proper in an effort to bypass immigration legislation that prevented the United States from accepting European refugees fleeing Nazi violence. These debates raised fundamental questions about the nature of territories, the limitations of citizenship, and the racial politics of nation-state formation. Importantly, this was not the first time such an effort had been made; similar debates about migration, race, citizenship, and indigeneity collided in the late nineteenth century with the immigration of Sámi reindeer herders to northwest Alaska and the immigration of First Nations Tsimshean from British Columbia to Annette Island in southeast Alaska. In each instance, Alaska’s territorial status allowed for the manipulation—if not actual, then potential—of laws and institutions that governed citizenship, race, and national territoriality. Even statehood could not reconcile these paradoxes, as is evident by the distinct legal relationships that indigenous nations in both

Alaska and Hawaii—the last two “incorporated” territories admitted to statehood—have with the federal government.

By considering Alaska in this context, this dissertation makes significant

contributions to the historical understanding of indigenous-U.S. relations, law, citizenship, race, and the histories of U.S. territorial expansion, empire, and global affairs. Much of the scholarly literature on U.S. territories and American empire focuses on those acquired following the Spanish-American War in 1898: the Philippines, Guam, and Puerto Rico as part of the Treaty of Paris, and the U.S. annexation of Hawaii that same year.18 Alaska is rarely mentioned in these literatures, save for the occasional reference or enumeration with all U.S. territories. Perhaps the public perception and characterization of Alaska as the quintessential “last frontier”—an appendage of the

American “West”—has elided the territory’s imperial origins and rendered any alternate understanding of its past illegible to scholars. This dissertation not only demonstrates

Alaska’s centrality to U.S. imperial projects, but also argues that incorporated territories play a specific role in those processes. In this vein, this dissertation suggests that Alaska and Hawaii should be considered together in efforts to understand late nineteenth and twentieth century U.S. empire.19 Specifically, how did the legal relationship of indigenous nations to the U.S. federal government come to be encapsulated within the

18 Alfred W. McCoy and Francisco A. Scarano, eds., Colonial Crucible: Empire in the Making of the Modern American State (Madison: University of Wisconsin Press, 2009); Christina Duffy Burnett and Burke Marshall, Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Durham: Duke Unibersity Press, 2001); Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire (Lawrence: University Press of Kansas, 2006); McCoy, Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State (Madison: University of Wisconsin Press, 2009); Julian Go and Anne Foster, eds., The American Colonial State in the Philippines: Global Perspectives (Durham: Duke University Press, 2003); Julian Go, American Empire and the Politics of Meaning: Elite Political Cultures in the Philippines and Puerto Rico during U.S. Colonialism (Durham: Duke University Press, 2008). 19 Kanaka Maoli deny the legality of the U.S. overthrow and annexation of Hawaii, arguing that their sovereignty was never extinguished. Native Hawaiians are not a federally recognized tribe, and continue to resist that status. Most recently, conflict over proposed legislation to designate Native Hawaiians as federally recognized tribes has characterized Kanaka Maoli resistance to what they consider a gross usurpation of their sovereignty. Rather than conceding to the U.S. legal system in which they would be under the complete plenary power of Congress, they instead appeal to international law that would render the overthrow and annexation illegal. See J. Kēhaulani Kauanui, “Precarious Positions: Native Hawaiians and U.S. Federal Recognition,” in Jean O’Brien and Amy Den Ouden, Recognition, Sovereignty Struggles, and Indigenous Rights in the United States: A Sourcebook (Chapel Hill: University of North Carolina Press, 2013). 15

particular categories of “American Indian and Alaska Native,” and “Native

Hawaiian/Pacific Islander?” Why are the relationships of indigenous people in the “final” two “incorporated” territories so fundamentally different from both that of American

Indians of the continent and the populations of unincorporated territories like Puerto

Rico? What do the sovereignty struggles of Alaska Natives, when considered in conjunction with those of Kanaka Maoli, reveal about the overall machinery of U.S. empire, locally and globally?

While this dissertation focuses on Alaska, those questions linger in the background. Not only did the acquisition of Alaska break with previous patterns of U.S. territorial expansion, but the purchase and subsequent development of policy regarding

Alaska Natives and their relationship to the federal government marked a distinct break in the long history of the relationship with tribes in the contiguous states and territories.

By 1867, the United States had developed a sophisticated legal and military system by which they undermined tribal sovereignty and pursued tribal dispossession, staking claims to the land and the legitimacy of nation-state. The purchase of Alaska, the deliberate decision not to sign treaties with Alaska Natives, and the refusal to make certain the status of either the territory itself and Alaska Natives, mark a fundamental shift in the precedent of U.S. dealings with Native peoples. Although this may seem to make a case for Alaskan exceptionalism or characterize the territory and the colonial relations that developed within its boundaries as anomalous, the ideas, discourses, policies, and legal categories that territorial and federal officials, lawmakers, corporate representatives, and settlers developed with regard to Alaska Natives came to bear on policy matters and Indian affairs in the contiguous states. In this way, Alaska becomes a

critical factor in understanding indigenous-U.S. relations broadly, and the making of the

U.S. state and U.S. imperialism.

In considering Alaska within the field of American Indian Studies, this dissertation draws on a broad range of scholarship relating to law, settler state formation, and indigenous articulations of sovereignty within and against it. In thinking about the development of US settler law and the legal concepts of “Discovery,” “Trust,” and

“guardianship” that generally frame Federal Indian policy and the exclusion of Alaska

Natives from these legal frameworks, I refer often to the work of David Wilkins and K.

Tsianina Lomawaima. In their co-authored book, Uneven Ground: American Indian

Sovereignty and Federal Law has been fundamental to my comparative analysis of how these doctrines came to be defined and implemented in the contiguous states and how and why territorial and federal officials sought to avoid their implications in Alaska.

Likewise, their work has been imperative for understanding how Alaska Natives navigated federal and territorial law and drew from these concepts and policies in their struggles for sovereignty, land, and citizenship.20

Likewise, the work of literary scholar Jodi Byrd and legal scholar Heidi

Kiiwetinepinesiik Stark have been formative in how this dissertation critiques the ways in which territorial and federal officials, lawmakers, and the historians who wrote about them have previously narrated the history of the U.S. Byrd, in particular, has eloquently demonstrated the ways the U.S. settler state both constructs and deploys “Indianness” as a transit of empire to justify the colonization of indigenous peoples and also in asserting

U.S. global hegemony. She argues throughout her book that “the United States has used

20 See Wilkins and Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law (Norman: University of Oklahoma Press, 2001).

executive, legislative, and juridical means to make “Indian” those peoples and nations who stand in the way of U.S. military and economic desires.”21 By considering her argument, this dissertation looks at Alaska and the denial of Indian status to Alaska

Natives as a similar, yet very distinct, deployment of “Indianness;” in this case to withhold the particular legal designation in order to facilitate a new process of empire in the newly acquired territory—the acquisition of which represented a fundamental break with previous patterns of expansion. Specifically, her examination of the relationship of

Native Hawaiian sovereignty struggles and their resistance to the 2007 Native Hawaiian

Government Reorganization Act that sought to incorporate Native Hawaiians into the parameters of federal recognition illustrates yet another facet of U.S. deployment of

“Indianness” in a former “incorporated” territory. In conjunction with Stark’s articulation of federal law as “the creation story of the United States,” the construction and deployment of “Indianness” through federal law and policy draws our attention to the ways that law as a discourse is fundamentally about narrating a particular kind of nation- state into existence—one that through law, attempts to legitimize its very illegality and illegitimacy. In framing Alaska as a settler imperial space, this dissertation examines the contradictory nature of law, the tensions it produces, and how settlers, corporate interests, lawmakers, and Alaska Native activists deployed the fluidity of law in particular ways, while evoking ideas of “Indianness” and particular relationships to federal law in the process.22

By engaging Indigenous Studies scholarship, it becomes clear that Alaska

21 See Jodi Byrd, The Transit of Empire: Indigenous Critiques of Colonialism (Minneapolis, University of Minnesota Press, 2011), xx. 22 Heidi Kiiwetinepenisiik Stark, “Transforming the Trickster: Federal Indian Law Encounters Anishinaabe Diplomacy,” in Jill Doerfler, Niigaanwewidam James Sinclair, and Heidi Kiiwetinepinesiik Stark eds., Centering Anishinaabeg Studies: Understanding the World Through Stories East Lansing: Michigan State University Press, 2013). 18

historians, in particular, have struggled to make sense of the territory. Dominant historical narratives overwhelmingly frame Alaska as the last frontier and chart a trajectory from purchase through subsequent statehood, situating Alaska as the final chapter in the history of U.S. westward expansion. They account for Alaska’s long tenure as a territory, the protracted debates over statehood and the relationship of the territory to the U.S., and the distinctions in the legal relationship of Alaska Natives to the federal government by arguing that non-contiguity, distractions from the Civil War, and a lack of knowledge about the new territory led to decades of neglect.23 They also account for the slow growth of Alaska’s settler population prior to WWII as further neglect from

Congress in developing the nation’s frontiers. While historian Stephen Haycox recognizes at least an inkling of a colonial history of Alaska, he contends in his book that colonialism in Alaska was resolved with statehood and once the settler population achieved its goal of establishing a society much like that in the contiguous states.

Haycox’s failure to recognize the dispossession of Native people through processes of settler colonialism is profound. But it is only half the problem. It also reflects the failure on the part of Haycox and other historians to imagine that territorial and federal officials, lawmakers, and corporate interests would want to use the territory for anything else. I argue in this dissertation that what these historians identify as neglect, disregard, and absent-mindedness is actually the very machinations of settler imperialism that operated to suspend the recognition of Alaska Native sovereignty and the relationship of the territory itself to the nation proper in order to expedite the expropriation of Native land,

23 Ernest Gruening, The State of Alaska: A Definitive History of America’s Northernmost Frontier (New York: Random House, 1968); Stephen Haycox, Alaska: An American Colony ( Seattle: University of Washington Press, 2002); Claus-M. Naske and Herman E. Slotnick, Alaska: A History of the 49th State 2nd Edition (Norman: University of Oklahoma Press, 1987); Clause-M. Naske, 49 at Last!: The Battle for Alaska Statehood 3rd Edition (Kenmore: Epicenter Press, 2009); Orlando W. Miller, The Frontier in Alaska and the Matanuska Colony (New Haven: Yale University Press, 1975). 19

labor, and natural resources while facilitating increasing U.S. military and political hegemony across the globe.

Additionally, many non-Native scholars who have written about Alaska Native history and land claims have similarly missed the distinct functions of settler imperial law and the way the strategies of Alaska Native activists leveraged the tensions and ambiguities inherent in the settler imperial formation in their struggles for sovereignty and land.24 The careful work of Nora Marks Dauenhauer and Richard Dauenhauer in documenting the history and lives of Tlingit, Haida, and Tsimshian communities and activists has been crucial to this dissertation and the ways in which I trace Native political strategies across the settler imperial landscape. In addition to the Dauenhauers, this dissertation is indebted to a number of Alaska Natives Studies scholars and activists including of Mique’l Icesis Dangeli, Zachary Jones, Maria Sháa Tláa Williams, and

William Iggiagruk Hensley.25 Their path breaking work has articulated powerful responses to colonialist narratives that have tended to disregard or mischaracterize the long history of Alaska Native political strategies and sovereignty struggles, demonstrating the ways Alaska Natives shaped their relationship to the federal government and set limits on settler imperial law.

In considering land, sovereignty, and the relationship of Alaska Natives to the

24 For historians who document land claims but fundamentally misunderstand indigenous sovereignty and settler imperialism as a framework, see Donald Craig Mitchell, Sold American: The Story of Alaska Natives and Their Land 1867-1959 (Fairbanks: University of Alaska Press, 2003); Donald Craig Mitchell, Take My Land, Take My Life (Fairbanks: University of Alaska Press, 2001); Peter Metcalfe, A Dangerous Idea: The Alaska Native Brotherhood and the Struggle for Indigenous Rights (Fairbanks: University of Alaska Press, 2014). 25 In tracing the ways these activists engaged U.S. settler imperialism, the work Nora Marks Daunhauer and Richard Dauenhauer on Tlingit history and culture has been invaluable. Particularly their extensive documentation of the generations of Tlingit leaders in Haa Kusteeyí: Our Culture Tlingit Life Stories demonstrates the ongoing history of Tlingit persistence in their struggles for land, sovereignty, and citizenship rights. See also Mique’l Icesis Dangeli, “Bringing to Light a Counternarrative of Our History: B.A. Haldane, Nineteenth-Century Tsimshian Photographer,” in Sergei Kan, ed. Sharing Our Knowledge: The Tlingit and Their Coastal Neighbors (Lincoln: University of Nebraska Press, 2015). 20

federal government, this dissertation also contributes to scholarly conversations on the legal construction of citizenship and the relationship of U.S. citizenship and Native people.26 In distinguishing between “civilized” and “uncivilized” tribes, the 1867 Treaty of Cession had situated Alaska Native political rights in relation to U.S. citizenship rather than nationhood. Thus, citizenship became a primary vehicle for the assertion of Alaska

Native rights against encroaching settler society. After fighting for, and then winning a path to citizenship through the territorial legislature in 1915, nearly ten years before the

Indian Citizenship Act of 1924 made all American Indians and Alaska Natives citizens.

In contrast with how many American Indians interpreted U.S. citizenship as a usurpation of their sovereignty and tribal citizenship, Alaska Natives wielded citizenship and the rhetoric of democratic inclusion and civil rights in their pursuit of sovereignty and land rights as indigenous people. While territorial and federal officials used Native access to citizenship in their arguments against the recognition of sovereignty rights, the flexibility

26 For legal constructions of citizenship in the long 19th century, see Barbara Young Welke, Law and the Borders of Belonging in the Long Nineteenth Century United States; also, Mae M. Ngai’s book, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004) explores the ways in which law designates racialized subjects in relation to citizenship, tracing the development of the categories of “illegal alien” and “citizen” through immigration law. For citizenship and Native people, see See Frederick E. Hoxie This Indian Country: American Indian Activists and the Place They Made (New York: Penguin Books, 2012); Philip J. Deloria, “Four Thousand Invitations,” American Indian Quarterly 37, no. 3 (2013): 25-43; Tsianina Lomawaima, “The Mutuality of Citizenship and Sovereignty: The Society of American Indians and the Battle to Inherit America,” American Indian Quarterly 37, no. 3 (2013): 333-51; Kevin Bruyneel examines indigenous engagement in the debate over U.S. citizenship and the ways in which Native people sought to define an indigenous political identity in relation to U.S. institutions in The Third Space of Sovereignty: The Postcolonial Politics of U.S.— Indigenous Relations, (Minneapolis: University of Minnesota Press); Kenneth R. Philp addresses the campaign for Indian civil rights and its relationship to Termination in Termination Revisited: American Indians on the Trail to Self-Determination 1933-1953, (Lincoln: University of Nebraska Press, 1999); Karen Tani explores the relationship of American Indians, sovereignty, and the welfare state in “States’ Rights, Welfare Rights, and the ‘Indian Problem’: Negotiating Citizenship and Sovereignty, 1935-1954,” Law and History Review, 3 (no. 1, Feb. 2015), 1-40; Additionally, for scholarship that specifically explores indigenous people, Jim Crow, and disenfranchisement, see Jeanette Wolfley, “Jim Crow, Indian Style: The Disenfranchisement of Native Americans,” American Indian Law Review 16, no. 1 (1991): 167-202; Orlan Svingen, “Jim Crow, Indian Style,” American Indian Quarterly, 11, no.4 (1987): 275-86.

of settler imperial uncertainty regarding the legal status of Alaska Natives provided an important space from which they could advance their own vision of U.S. citizenship, indigeneity, and sovereignty. In this way, they contested the manner in which civil equality and citizenship had been wed to a linear trajectory of assimilation that territorial and federal officials framed as antithetical to Native collective sovereignty and land ownership.27

Drawing on the work of scholars in Indigenous Studies, Legal History, Settler

Colonial Studies, and U.S. empire, I examine settler imperialism in Alaska in six chapters. Moving chronologically, each chapter examines a specific set of conflicts over

Alaska Native land, resources, citizenship, and sovereignty that gave rise to court decisions, policy, and legislation intended to maintain perpetual uncertainty in the legal status of Alaska Natives and traces the ways Alaska Natives navigated this shifting and ambiguous legal terrain. I demonstrate how these perpetual uncertainties, which territorial and federal officials characterized as a “special legal problem,” in fact constituted a new settler imperial legal apparatus that functioned in distinct ways. In chapter one, I examine the 1867 Treaty of Cession by which the United States purchased the territory and how the ambiguous language regarding Alaska’s indigenous people became increasingly embedded in the legal terrain developing in the territory. I argue that the categorization of

Alaska Natives as distinct and apart from American Indians inherent in the Treaty and in

27 This was often manifest in contests over access to resources and wage labor opportunities. In considering Native labor, sovereignty, citizenship, see Brian C. Hosmer, American Indians in the Marketplace: Persistence and Innovation Among the Menominees and Metlakatlans, 1870-1920 (Norman: University of Kansas Press, 1999); Daniel Usner, Indian Work: Language and Livelihood in Native American History (Cambridge: Harvard University Press, 2009); Chantal Norrgard, Seasons of Change: Labor, Treaty Rights, and Ojibwe Nationhood (Chapel Hill: University of North Carolina Press, 2014); William Bauer, We Were All Like Migrant Workers Here: Work, Community, and Memory on California’s Round Valley Reservation, 1850-1941 (Chapel Hill: University of North Carolina Press, 2012). See also, Evelyn Nakano Glen, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor (Cambridge: Harvard University Press, 2004). 22

Indian Commissioner Francis Walker’s racialization of Alaska Natives came to be reflected in the application of the Trade and Intercourse Acts to the territory. Specifically, only articles 20 and 21 of the Acts were extended to Alaska; those which regulated trade in spirituous and intoxicating liquors. In litigating subsequent conflicts between the

Tlingit nation and white miners, settlers, or the U.S. military or customs agents, courts found that Alaska was “not Indian Country in any other sense” but articles 20 and 21.

Such a designation functioned to usurp Tlingit sovereignty and fossilize legal assumptions of the distinctions between Alaska Natives and American Indians. Tlingit resisted these assaults on their sovereignty and the encroachment of non-Natives on their land and resources and their social, political, and economic autonomy. They repeatedly challenged usurpations of their sovereignty in district court, and the decisions in these cases reflect the developing settler imperial legal landscape in the territory. The crystallization of settler imperial law culminated with the decision in Alaska District

Court case Sah Quah v. Nah-Ki-Klan (1886) in which the district judge concluded that

Alaska Natives were not nations as the federal government had classified American

Indians, nor were they citizens. Curiously, he concluded that they were instead

“dependent subjects.” I argue that this distinct designation reflected the crystallization of settler imperialism in the territory, and provided a foundation from which ambiguity and uncertainty could be maintained. This had profound implications for the subsequent decades of Alaska Native sovereignty struggles.

Chapter two analyzes how settler imperial tensions became manifest in federal policy toward Alaska Natives and played out in struggles over land, Native autonomy, and resources in the reindeer herding industry. I argue that the reindeer herding industry

was itself a settler imperial project as it was born out of BIA refusal of jurisdiction in the territory and used as a means to avoid reckoning with Native land ownership. As such it became a fundamental battleground in the contests over the legal relationship of Alaska

Natives to the federal government. Initially a program for the use and benefit of Iñupiat and Yup’ik communities in northwest Alaska, the reindeer industry soon caught the attention of white industrial capitalists. Tensions in the legal relationship of Alaska

Natives came to the forefront as Native herders petitioned the federal government for exclusive rights to reindeer ownership as part of their rights as indigenous people to whom the federal government had an obligation in much the same way as with Indian tribes of the contiguous states. As territorial and federal officials debated the implications of expelling whites from the reindeer industry, notions of citizenship and wardship became embedded in the discourse surrounding whether or not Alaska Natives occupied a legal status similar to American Indians. Furthermore, the reindeer industry drew Alaska into debates about immigration, race, citizenship, and national territory as the Bureau of

Education brought Sámi herders to Alaska to teach Alaska Natives the business of reindeer herding. Many of the Sámi left the reindeer industry after their contracts had expired and pursued mining claims during the 1898 gold rush. Upon striking successful claims, their rights to stake mines and their rights as citizens came under fire by white miners on the basis that as Sámi people, they were of Asian origin and therefore ineligible for citizenship, making their claims invalid.

In Chapter three I argue that Tlingit attorney, territorial legislator and Alaska

Native rights activist William Paul Sr. understood the how settler imperial tensions had shaped the relationship of Alaska Natives to the federal government, and that he

leveraged those tensions and the ambiguities they produced in pursuit of Alaska Native citizenship and voting rights, land, and sovereignty. Specifically, this chapter focuses on how Paul alternately aligned the legal status of Alaska Natives with that of American

Indians in the contiguous states, or argued for fundamental distinctions between Alaska

Natives and American Indians as he sought the passage of two seminal pieces of legislation in the struggle for Native land rights in Alaska: The Tlingit and Haida

Jurisdictional Act and the 1936 Alaska Reorganization Act (amendments extending key provisions of the IRA to Alaska Natives). Central to Paul’s efforts were the ways non-

Natives had constructed the relationship of Native sovereignty to the status of Native peoples as government wards. Paul (and Native people generally) did not agree with the federal government’s legal construction of sovereignty as couched in the status of domestic dependent nationhood and the wardship status of Native people, but he did recognize that non-Native policy makers had bound the two together in particular ways.

He also recognized that Alaska Natives, indigenous peoples in a non-contiguous territory that also shared an ambiguous relationship within legal constructions of the U.S. nation- state, had confounded that relationship and he sought to bridge specific aspects of the relationship of the federal government with tribes in the contiguous states while systematically avoiding others that would infringe on Alaska Native political organization, patterns of land ownership, and networks of relations. He employed these same tactics in his landmark suit against the federal government, Tee-hit-ton Indians v.

United States, when he argued that Alaska Natives were fundamentally distinct from

Indians of the contiguous states. While ultimately losing the case, which had profound implications for Indians, the decision exemplifies settler imperialism in Alaska in that it

perpetuated legal uncertainties regarding the status of Alaska Natives, delegating the responsibility for determining such back to Congress.

Chapter four takes as its focus how settler imperial flexibility of “incorporated” territorial status came to bear on ideas about race, indigeneity, citizenship, and nation by examining three communities of “refugees”: First Nations Tsimshean who migrated from

British Columbia to southeast Alaska, the proposed colonies of European refugees who desperately hoped to flee Hitler’s Naziism, and the Pribilof Aleut communities who were interned in southeast Alaska during WWII. Examining these three cases together exposes the process by which lawmakers conflated ideas about indigeneity, race, and citizenship in ways that disavowed Alaska Native sovereignty and rights as indigenous Alaskans. I argue that the legal tensions inherent in “incorporated” territorial status confounded ideas about the legal boundaries of the nation proper and the status of those who could rightfully inhabit it and by what legal designation. In 1887 Canadian First Nations

Tsimshians crossed the borders of the settler colonial nation-states of the U.S. and

Canada to settle on Annette Island in southeast Alaska. Four years later Congress, referring to the Metlakatlan Tsimsheans as “foreign Indians,” framed their migration as one of a Christian Indian community who, through missionization, had achieved a degree of “civilization.” These narratives of “civilized settlerism” framed Tsimshean relocation as born from their desire to flee a despotic ruler (the British Crown) in search of religious freedom. Not coincidentally, this framing echoed familiar origin narratives of the United

States. Congressmen ascribed these designations—foreign refugees fleeing religious persecution—onto Tsimshean migrants and 1891 they became the impetus for Congress to create an Indian reservation for the permanent use and occupation of the Metlakatlan

Tsimsheans. Today, Metlakatla is the only remaining reservation in what became the state of Alaska, and the community exercises a relatively high degree of sovereignty over land, membership in the community, and fishing rights in the surrounding coastal waters.

In this way, the narratives of civilized settlement by “foreign Indians” revealed the ways federal officials had at once rendered Alaska Native nationhood illegible within existing legal frameworks, while simultaneously confounding indigeneity and defining procedures of “legitimate” settlement.

The utility of settler imperial flexibility and narratives of civilized settlerism came into sharp focus in the twentieth century when the federal government attempted to settle colonies of European refugees in Alaska during WWII. At the time, the majority of these refugees would have been prevented from migrating to the United States by the

1924 Reed-Johnson Act and the system of national quotas it imposed. Lawmakers, seeking to leverage the flexibility of Alaska’s territorial status, argued that because

Alaska was outside of the nation proper, immigrants who otherwise would not be permitted to enter the United States could be admitted to Alaska, where their citizenship would be conditional on their remaining in the territory. In doing so, this legislation had the potential to create a new category of citizen and a new function of U.S. territories.

While ideas of race, indigeneity, “civilization,” and nation were strained over who could call Alaska home, the federal government removed 881 Aleuts from their homes on the Pribilof Islands in the Bering Sea and interned them in Funter Bay in southeast

Alaska. While the official explanation from the government for the evacuation was one of safety, scholars have recently argued that it was in fact the racialization of Aleuts as

Asian and therefore indiscernible from the Japanese who invaded the Aleutian Islands

that prompted the internment. White residents of many of the villages from which the

Aleuts were interned were not removed. By the time of their return to the Pribilofs, over

100 Aleut had died. By tracing the ways lawmakers conflated categories of indigeneity, race, and nation, the triangulation of these three communities and their relationship to federal policy and law in Alaska reveals the flexibility and tensions within settler imperialism, and demonstrates the profound implications these tensions had for Alaska

Native sovereignty, and the institution of U.S. citizenship.

Chapter five investigates how the settler imperial tensions reflected in the legal status of Alaska Natives came to bear on the creation of Indian reservations for Alaska

Natives under the provisions of the 1936 Alaska Reorganization Act in the context of the

Alaska Native civil rights movement and 1945 passage of the Alaska Anti-Discrimination

Act, which barred discrimination based on race in public accommodations. Alaska

Natives advanced a vision of their rights as Native people to self-determination and land in which their rights as equal U.S. citizens further guaranteed their collective landownership and their right to participate in the political, economic, and social life of the territory and the nation. As Alaska Natives sought recognition of their land rights in the form of Indian reservations under the provisions of the ARA, territorial and federal officials argued that Alaska Natives were not tribes in the same sense that the federal government had recognized tribes in the lower forty-eight, that they were instead citizens, and that as such, their rights to collective land ownership as Native people were unclear.

As Tlingit and Haida activists in southeast Alaska pursued an end to racial discrimination, these territorial and federal officials began to argue that not only was the citizenship status of Alaska Natives incompatible with tribal recognition and Indian

status, but that it constituted a form of “inverted Jim-Crowism” of which white settlers were the victims. By associating Native land rights with “reverse discrimination,” these officials not only intensified debates over the legal status of Alaska Natives but also began to use the Alaska situation in which Alaska Natives had not previously had Indian reservations similar to many tribes in the contiguous states as the logic behind emergent

Terminationist policy. In this way, the legal ambiguities that characterized settler imperial relations in Alaska were part of much larger developments in the domestic legal structure regarding the relationship between the U.S. and indigenous tribes.

Chapter six follows the contests over Native land ownership, reservations, and citizenship into the debates over Alaska statehood and argues that the transformation of

Alaska from an “incorporated” territory into a state exposed the settler imperial tensions in the relationship of Alaska Natives to the federal government and the form and function of “incorporated” territories in the broader structure of U.S. empire. In the late 1940s as

Alaska’s population of white settlers had increased as a result of WWII, the urgency with which Alaska Natives sought recognition of their land and sovereignty likewise increased as did the clamoring for Alaska statehood among territorial officials. In subsequent statehood legislation, these officials attempted to disavow Alaska Native land ownership on the basis that they did not constitute tribes in the same legal sense as American Indian tribes in the contiguous states. Alaska Natives disagreed, and while they contended that their historical relationship with the U.S. had been distinct in many ways, they argued for that any legal construction of Alaska statehood must account for their land ownership and sovereignty and they successfully achieved a statehood bill that while not resolving settler imperial ambiguities, did not foreclose Native rights to land, sovereignty, and U.S.

citizenship.

The statehood debates also clashed with competing ideas at the federal level regarding the future of “incorporated” territories. Statehood for Alaska and Hawaii occurred nearly simultaneously, and in the midst of a deepening Cold War. The

Eisenhower administration sought to retain the flexibility of federal authority in these territories, belying the assumption that “incorporated” territories were inevitably bound for statehood and inclusion within the legal framework of the nation-state. While

Eisenhower favored statehood for Hawaii, he would not approve statehood for Alaska citing Cold War exigencies. In response, territorial officials proposed a number of alternatives, including partition, in which only the south central and southeast portions most heavily populated by whites, would be admitted to statehood, and commonwealth status similar to that of Puerto Rico—an unincorporated territory. These debates reveal the contingency of statehood for “incorporated” territories and the lengths to which the federal government would go to ensure that, despite statehood, the flexibility of settler imperial ambiguity would remain. Ultimately, both Hawaii and Alaska were admitted to statehood with profound exceptions in terms of territoriality and the relationship of the

Native nations residing in them to the federal government.

While concluding with statehood, this dissertation casts an eye forward to the intensifying post-statehood contest for Alaska Native land and sovereignty as the new state entity was poised to make selections of nearly 40 million acres of land from what the federal government called the “public domain.” Lawmakers, territorial and federal officials, white settlers and corporate interests all deployed settler imperial tensions to guarantee a productive ambiguity over the legal status of Alaska Natives such that

settlement and resource extraction could commence and continue without recognition of their sovereignty and land. In the post statehood era, Native communities continued their engagement with the strained institutions of law and policy in an incorporated territory and carved out their relationship to the federal government unlike any other in the history of indigenous-U.S. relations. While ANCSA, the legislation resulting from their efforts, is a highly contested settlement, it reflects how Alaska Natives leveraged settler imperial flexibility in their legal status in crafting a legislative resolution. As a history of Alaska

Native sovereignty struggles prior to the ANCSA settlement, this dissertation demonstrates how Alaska Natives continuously confronted the federal government with the illegitimacy of both frontier settler colonial and imperial framings and the implications each had for Alaska Native futures.

Chapter 1: “Not Indian Country in Any Other Sense”: Native Sovereignty, Law, and the Development of Settler Imperialism in the District of Alaska

On March 30, 1867, the United States and Russia reached an agreement for the sale of Russia’s North American colony, Alaska, for $7.2 million. The Treaty of Cession was signed by Russian Minister to the United States Edouard de Stoeckl and the U.S.

Secretary of State William Seward, who had negotiated and executed the purchase with neither Congressional nor Presidential approval nor any consent or consideration of the

Native Nations in what, nearly 100 years later, became the 49th state.1 The transaction involved the transfer of more than 375 million acres, most of which no non-Native person had ever laid eyes on and whose presence in small forts clinging precariously to the southeastern coast was tenuous. The presumptive nature of the sale and the ambiguous, boilerplate language of the Treaty of Cession reflects a hastiness perhaps not uncommon in 19th century Euro-American empire building.2 It also established a disjointed, uneven foundation from which a peculiar and distinct legal apparatus would emerge with regard to U.S. imperial objectives and nation-state expansion. Seward mused that the newly acquired territory would one day become “a state or many states” reflecting the common trope of ever expanding western frontiers that excited the Euro-American imagination.

He also envisioned the far western reaches of the territory as “our stepping stones to

Asia,” reflecting what he perhaps understood as a complimentary characterization of the territory as both constituting a settler colonial space into which the U.S. could continue

1 Hu Pegues, “Interrogating Intimacies,” 52. 2 See Michael Witgen, An Infinity of Nations: How the Native New World Shaped North America (Philadelphia: University of Pennsylvania Press, 2013); Kathleen DuVal, The Native Ground: Indians and Colonists in the Heart of the Continent (Philadelphia: University of Pennsylvania Press, 2006); Juliana Barr, “Geographies of Power: Mapping Indian Borders in the “Borderlands” of the Early Southwest,” The William and Mary Quarterly Vol. 68, No. 1 (January 2011), 5-46. 32

westward expansion and as an imperial space from which the U.S. could expand its hegemony and pursue international objectives.3

As these visions of U.S. expansion collided with Alaska Native sovereignty, the tensions between imperial and frontier framings of Alaska proved critical in terms of the developing legal framework in the territory and the ways Alaska Natives enacted resistance and preserved their sovereignty. Tensions within the contradictory framings of non-Native understandings of Alaska’s “place” within national and imperial projects came to be reflected in how territorial and federal officials read Alaska Natives into or outside of Indian law and policy. These tensions and the legal framework that developed as a result are the core of settler imperialism. Historical actors and the historians who wrote about these early years characterized them as representing an age of neglect in which the federal government failed to make definitive jurisdictional decisions, create a territorial government, and define the status of Alaska Natives and land in the territory by fully extending relevant U.S. policy and law.4 In this way, territorial Alaska did not conform to expectations regarding U.S. expansion; the Northwest Ordinance, which defined Indian-U.S. relations and set out a path to statehood, was not applied. Most importantly, the federal government never signed treaties with Alaska Natives as it had with many tribes in the contiguous states and territories.

These uncertainties were perhaps generated by the Treaty of Cession, in which

Article III declared that “inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they

3 Oliver R. Seward, ed., William H. Seward’s Travels Around the World (New York: Appleton and Co., 1873), 34. 4 Ernest Gruening, The State of Alaska: A Definitive History of America’s Northernmost Frontier, (New York: Random House, 1968); Clause-M. Naske and Herman E. Slotnick, Alaska: A History of the 49th State 2nd Ed. (Norman: University of Oklahoma Press, 1994); Stephen Haycox, Alaska: An American Colony (Seattle: University of Washington Press, 2006). 33

should prefer to remain in the ceded territory, they with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.” The Treaty left the fate of what it distinguished as “uncivilized tribes” to “such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.”5

Furthermore, Article VI declared the territory “to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions, by any associated companies, whether corporate of incorporate, Russian or any other, or by any parties, except merely private individual property holders”6 for which the U.S. government paid an additional $2 million. In the absence of treaties between Alaska Natives and the U.S. government, the distinctions between what were understood as “civilized” and “uncivilized tribes,” and the expectation that all land in the territory was untethered save for the holdings of private property owners, the Treaty appears to create a legal void regarding the status of

Alaska Natives, implying instead that Congress would provide a timely solution. The competing understandings of the territory’s relationship to the U.S. as either an extension of the western frontier or as the first experiment in U.S. overseas empire came to be reflected in understandings of Alaska Natives as either Indians possessing inherent sovereignty and rights to land that had been recognized by the U.S. Supreme Court earlier in the 19th century, or something else entirely in which case their legal status, as dictated and understood by Congress and territorial and federal officials, was uncertain.

Subsequent legislation addressing territorial governance and the status of Alaska

Natives and their land reflect an inability, hesitancy, or refusal (with varying degrees of

5 Treaty of Cession Article III 1867. 6 Treaty of Cession Article VI 1867. 34

intent) to adequately define the relationship between Alaska Natives and the federal government. I argue that this maintenance of the “status quo” was not merely the act of maintaining the void created by the lack of treaty making and the Treaty of Cession.

Rather, it consisted of the development of a legal framework around and through that void that would allow territorial and federal officials, corporate interests, and individuals to embark on and then continue processes of settlement and resource extraction without a formal, legal reckoning of Alaska Native sovereignty and land rights. This chapter focuses on early U.S. interaction with southeast Alaska Tlingit and traces the way Tlingit challenged U.S. affronts to their sovereignty and argues that in response the military, territorial and federal officials, Congress, and the courts crafted law and policy that perpetuated uncertainties about the legal status of Alaska Natives and the territory itself. 7

Initial interactions between Tlingit and the U.S. Army demonstrate the decision to refrain from treaty making as deliberate, so as to avoid obligating federal government recognition of Alaska Native nationhood and territorial sovereignty. This divergent policy in turn necessitated a distinction in the legal status of the territory, which came to be reflected in the selective application of provisions contained in Trade and Intercourse

Acts—cornerstone pieces of legislation that governed Indian relations in the lower 48.

Specifically, Congress only applied those provisions that restricted the sale of alcohol and firearms, which implied that Alaska was not Indian Country in the legal sense of the term. In the contiguous states and territories, Indian Country constituted jurisdictional and territorial designations, and included the recognition of un-extinguished aboriginal title and Native jurisdiction in conflicts or with regard to crimes committed by one Indian

7 This chapter focuses on Tlingit of southeast Alaska because the southeast panhandle was the location of nearly all the Russian settlements that had been transferred to the United States, thus the presence of the U.S. Army was heaviest in that region. 35

upon another Indian.8 Designating Alaska as other than Indian Country, then, had stark implications for the recognition of Alaska Native sovereignty by denying Alaska Natives any sovereign jurisdiction over their own affairs.

The implications of this designation became evident with the passage of the 1884

Organic Act, which established the first elements of U.S. governing administration in

Alaska. As a settler imperial piece of legislation, the Act neither confirmed nor denied

Alaska Native claims to land, instead implying their resolution to a future date. Coupled with the selective application of the Trade and Intercourse Acts, its passage furthered important precedents in terms of legal uncertainty and ambiguity on the part of territorial and federal officials as to the status of Alaska Natives. Specifically, the Organic Act contained language guaranteeing Alaska Natives protection of any lands used, occupied, or claimed by them. Without tribal recognition or U.S. citizenship, subsequent lawmakers would dispute the nature of Alaska Native land ownership and the parameters of what came to be known as the “use and occupation clause” for nearly 100 years. Nevertheless, the uncertainties engendered in the extension of Articles 20 and 21 of the Trade and

Intercourse Acts regarding firearms and liquor and the 1884 Organic Act became further crystallized in two circuit court cases that concluded Alaska was not Indian Country, and one district court case in which the deciding judge declared that Alaska Natives were neither citizens, nor on the same legal footing as American Indians, and instead were

“dependent subjects.” This legal classification along with the unwillingness of lawmakers to reconcile the territory and Alaska Natives within any existing frameworks constituted

8 Act of June 30, 1834, Pub. L. No. 23-161, 12, 4 Stat. 729, 730. Indian Country includes all Indian reservation lands under U.S. jurisdiction, all dependent Indian communities, and all Indian allotments still in trust. In Indian Country, tribal sovereignty limits state power. https://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs141p2_024362.pdf accessed January 26, 2018. 36

the emergence of a new settler imperial legal framework that characterized—and continues to characterize—Alaska.

This process, while failing to account for Alaska Native sovereignty, was nevertheless beholden to it. I also argue that the uncertainties and tensions regarding the legal status of Alaska Natives were also the result of territorial and federal inabilities to make and sustain claims of U.S. sovereignty in the region. While these officials split hairs over what exactly Alaska was and how exactly they should engage Alaska Natives, southeast Alaska with its measly population of non-Natives remained a Native controlled space where Tlingit sovereignty and legal systems remained dominant. Thus, settler imperial tensions also emerged from an inability to render Alaska Natives legible to U.S.

Indian policy as much as they did an in ability of U.S. officials to assert any meaningful authority over Tlingit for decades. On the one hand, by maintaining uncertainty and ambiguity in the legal status of Alaska Natives, the U.S. could avoid a confrontation over land and sovereignty that could potentially undermine what they thought they gained in the purchase of the territory from Russia—land free of aboriginal title. On the other hand, that same uncertainty also revealed vulnerabilities in U.S. colonial practices that generations of Alaska Natives leveraged to their advantage in various communities across the territory.

A small number of scholars have noted the “distinct legal status for Alaska Natives.”9

While they have found the legal landscape in Alaska peculiar, these authors have not considered these relationships in terms of settler imperialism. I argue that the peculiarities

9 Sidney Harring, “The Incorporation of Alaska Natives Under American Law: The United States and Tlingit Sovereignty, 1867-1900” Arizona Law Review 31, 1989; Donald R. McCoy, “The Special Indian Agency in Alaska, 1873-1874: Its Origins and Operation” Pacific Historical Review 25, no. 4 (Nov. 1956), 355-367; Case and Voluck, Alaska Natives and American Laws; William Canby Jr., American Indian Law in a Nutshell (St. Paul: West Academic Publishing, 2009). 37

these scholars noticed regarding land in Alaska and conceptualizations of nationhood for

Alaska Natives did not constitute an anomaly, but rather the emergence of a new technique within the larger project of empire building; one in which these peculiarities in law and policy were aimed at maintaining perpetual uncertainty that proved productive in terms of colonization and dispossession. Seward’s negotiation and purchase of Alaska took place nearly simultaneously with his attempt to negotiate the purchase of the Virgin

Islands from the Dutch and the U.S. acquisition of the Midway Atoll in the Pacific

Ocean. In this larger context, the purchase of Alaska, along with another noncontiguous territory, signals that such transactions were part of important strategies of boundary management and an ambition for overseas colonial possessions to which issues of the citizenship or sovereignty of indigenous inhabitants of these territories were, in this imperial moment, imagined differently than in the contiguous states and territories. While

Secretary of State William Seward mused as to Alaska’s potential to become the next bread basket of the United States with its seemingly endless frontiers teeming with resources for the taking and referred to his listeners at Sitka as pioneers, he also implied that he had larger imaginings for the new territory. He wondered aloud about the foreign origins of Alaska Natives, declaring them to be descendants of the Chinese or Japanese and he hinted at Alaska’s role in checking British imperialism. In the late 19th century, these visions for expansion may have been quite congruent and complimentary.

However, in a few short years the tensions within them would strain the legal seams with which Seward sought to stitch together his western frontier empire. This chapter excavates the development of settler imperial law in these early years of U.S. occupation, and reveals how seemingly ad hoc military policy, legislation, and court decisions

congealed around settler imperial tensions, sustaining perpetual uncertainty over the ensuing several decades.

“Having no treaty obligations to observe, none, of course, have been violated”: Creating Legal Distinctions in the Military District of Alaska

Unlike in the contiguous states, where settler intrusion and migration was a typical precursor to United States land seizures and annexations, there had been no migration of

American citizens to Alaska during Russian possession. Seeing no need for a civil government/territorial organization, the federal government declared Alaska a military district under the command of the U.S. Army and passed a vague law that extended “the laws of the United States relating to customs, commerce, and navigation,” to the territory.10 Tlingit protests to the sale of the territory and to subsequent attempts by U.S.

Customs Officials to regulate their trade with the British Hudson’s Bay Company and with other Native nations further inland, demonstrate what legal scholars have subsequently confirmed, that the Russians “never tried to convince the Tlingit that the

Russian czar “owned” the land.”11 The Russians had, at best, occupied a small number of forts and trading posts that clung precariously to the coasts while the Tlingit held a powerful position within the fur trade upon which Russian presence was contingent.

With the changing of the flag at Sitka after purchase, the United States’ attempts to assert sovereignty in the region were made through a customs agent at Sitka and an Army contingent under the command of Jefferson C. Davis. Davis’s orders with regard to his dealings with Alaska Natives reflect a shift in previous patterns of indigenous-U.S. relations. Perhaps assuming a quasi-guardianship role, his superiors proposed that “in the

10 Harring, “The Incorporation of Alaska Natives Under American Law.” 11 Harring “The Incorporation of Alaska Natives Under American Law.” 39

absence of any organized civil Territorial Government and so far as [U.S.] laws authorize or permit,” Davis would serve as general superintendent, “protecting [Alaska Natives] from abuse and regulating their trade and intercourse with our own people.” Tellingly,

Davis’s superior. Assistant Adjutant General James B. Fry, also cautioned against the initiation of any kind of nation-to-nation negotiations, writing “Military officers have no authority to make Indian Treaties. You will, therefore, enter into no negotiations of that kind, or attempt to bind our government to any contracts of agreements without special authority and under special instructions.”12 Jefferson’s orders reflect the impulse to bring

Alaska Natives within the legal purview of guardianship obligations that governed relations with Indian tribes in the contiguous states and territories while the prohibition on treaty making for fear of binding the government in any way that might prove undesirable exemplifies the tensions inherent in these initial policy formulations. The decision to refrain from treaty making reflected the impulse to treat Alaska Natives differently from Indians in the contiguous states, and Jefferson and his colleagues realized immediately the potential benefits of this distinct relationship.

The implications of these tensions became clear two years later when U.S. presence and attempts to control the southeast Alaska collided with Tlingit sovereignty and legal systems, erupting in the Kake War.13 This conflict demonstrated Tlingit resistance to U.S. encroachment on their territory and trade relations, and also provides insight into the ways U.S. officials understood the relationship of the Tlingit with the U.S. federal

12 James Troy [name partially illegible] to Jefferson Davis, September 6 1867, Jefferson Davis Papers Box 1 File 7, Newberry Library Special Collections, Chicago. 13 Historian Zachary Jones argues that the name given to these events is a misnomer, and that rather the shelling of three Kéex’ Kwáan Tlingit villages was rather “a one-sided military attack on Tlingit civilian communities that mounted no resistance to the Army’s aggressive actions.” “Search For and Destroy: US Army Relations with Alaska’s Tlingit Indians and the Kake War of 1869,” Ethnohistory, Vol. 60 No.1 (Winter 2013), 1-26. 40

government. The Kake War occurred just fifteen months after the U.S. purchase of

Alaska, and historian Zachary Jones has demonstrated the complex origins of this conflict as being rooted in Tlingit refusal to recognize United States sovereignty in the region.14

For example, Davis related back to Washington D.C. that the Tlingit “frequently take occasion to express their dislike at not having been consulted about the transfer of the territory” and “do not like the idea of whites settling in their midst without being subjected to their jurisdiction.”15 The Army’s refusal to respect Tlingit legal authority and sovereignty increased tensions between the two nations, and on New Year’s Day a small altercation between three Tlingit leaders and a U.S. soldier quickly escalated into the shelling of three Tlingit villages near present day Kake, Alaska. The villages had been deserted in anticipation of the Army’s arrival, though the loss of valuable food stores and winter shelters was devastating.16

The settler imperial murkiness of these events lies in Davis and other military officials’ understandings of their roles in Alaska and their legal obligations to Alaska

Natives and the distinctions they created in the wake of the Kake War. The incident garnered national attention and a great deal of criticism in regard to the Army’s cruel and unwarranted actions. Indeed, Davis’s orders to willfully attack a Tlingit village filled with women and children in addition to Tlingit men did not sit well with a contingent of the

American public at the time.17 In spite of public sentiment, military officers like Davis understood their actions and the legal frameworks in the territory to be in their favor for the simple reason that the federal government had not clarified the status of Alaska

14 Zachary Jones, “Search For and Destroy.” 15 Jefferson Davis letters to Sec. of War, October 25th, 1869, Report of the Secretary of War, being part of the Message and Documents Communicated to the Two Houses of Congress, vol 1, 41st Song., 2d Sees. Ex. Doc. 1 part 2, 136 cited in Zachary Jones, “Search For and Destroy.” 16 Zachary Jones, “Search For and Destroy.” 17 Zachary Jones, “Search for and Destroy.” 41

Natives by bringing them under the jurisdiction of the Office of Indian Affairs.

Presumably, at least to Davis and his counterpart Lt. Colonel Robert Scott, this distinction was fundamental, and Scott wrote to Davis that in light of the Kake War, it was quite fortunate that Davis had not been “hampered by a civil government, Indian

Bureau, etc. in Alaska, and you have therefore a good square chance to pitch in and punish such tribes as many become ugly.”18

Indeed, Davis was acutely aware of the legal particularities and that they constituted a new method of colonization. Only a year and a half after the Kake War, he mused in his annual report that

The Indians throughout the Territory have generally shown a desire to observe peaceful relations with the whites. Having no farcical treaty obligations to observe, none, of course, have been violated, and one of the principle causes of war between the races has thereby been avoided.19(emphasis mine)

Clearly Davis understood a grander strategy behind the federal government’s decision to refrain from treaty making with Alaska Natives and his statements demonstrate that the lack of treaties between the federal government and Alaska Natives was not merely the result of absent-mindedness, but a deliberate attempt to avoid conflicts over land by simply refusing Native sovereignty and the legal implications of Native collective land ownership. Especially in light of the Kake War, he reveals that the refusal to make treaties and the refusal of OIA jurisdiction granted the Army relief from the typical practices and expectations in dealing with Native nations and people who fell under the jurisdiction of the Indian Office. According to Scott’s assessment, because Alaska

Natives were not considered within the jurisdiction of the OIA, the U.S. Army was free to

18 Robert Scott to Jefferson Davis, February 15, 1869, Jefferson C. Davis Papers, File 3 Box 1, Newberry Library, Chicago. 19 Report of Colonel J.C. Davis, August 20, 1870, Congressional Serial Set, House of Representatives Executive Documents, 41st Cong., 3rd Sess. 42

engage them differently. Thus, what may be important about this incident is that rather than accounting for real, tangible differences in legal status, Davis and Scott were, in a sense, creating distinctions to fit the expediency of their situation. Therein lies the functionality of settler imperialism—that by creating a distinction or an uncertainty in jurisdiction and legal status, settler colonial and imperial violences can be enacted, legitimized, and sustained in particular ways. This process in which Scott and Davis engaged would come to characterize the legal landscape in Alaska as a whole in the following decades as Congress and other agents of the federal government and the territory continued the process of forging distinctions in the legal status of Alaska Natives with the consequences being that no meaningful reckoning of sovereignty and land rights could (in the minds of these officials) occur.

In spite of the destructive Kake War and other military engagements in which

Davis presumed to demonstrate to the Tlingit the strength of the U.S. Army and the supremacy of U.S. sovereignty in the region, his letters and diaries reveal a different story. For example, in a letter to his wife, Davis indicated that every time he anchored his ship to come ashore “Indians” routinely greeted him “in great numbers” and that he would offer them tobacco and bread. Neither he, nor any of his men, could venture into

Tlingit territory without a guide and it has been common knowledge to Alaska historians for some time that at night, the American soldiers were forced to barricade themselves in their forts after any visiting Alaska Natives had been escorted off the premises.20 Davis’s experience in Tlingit territory exemplifies what Ojibwe scholar Michael Witgen has called the “illusion of empire,” in which Euro-American, and in this case the U.S. Army

20 Jefferson C. Davis to Marietta Davis, July 10, 1870, Jefferson C. Davis Papers, File 3 Box 1, Newberry Library, Chicago. 43

officials, who produced the written records of their encounters with native people

“understood their contact with the indigenous other through the lens of discovery.” This lens of discovery was an ideology that allowed colonizers to imagine the world as one divided between “civilized and savage peoples” for whom they had certain sets of expectations and to make claims to authority that were illusory.21 Thus, while Davis records his experiences with a deliberate tone of authority and paternalism, it is nevertheless obvious that for quite some time the U.S. presence in Alaska was tenuous and contingent on Davis’s adherence to the standards of Tlingit diplomacy.22 The delicacy of the situation was not lost on other military officers. For example, the captain of the U.S. Revenue Marine in Alaska W.A. Howard wrote to the Secretary of the

Treasury in 1868 asking for an allocation of funds in order to purchase “presents” to bestow on “the Koloshian chiefs (Tlingit), as also the Aleutian priests, on the Aleutian isles.” Doing so, he urged, would provide the evidence demanded by the Tlingit in the solidification of the new relationship. While Howard misunderstood the ceremony as a recognition on behalf of the Tlingit to U.S. sovereignty, his willingness to comply demonstrates further that U.S. military agents in Alaska were beholden to Tlingit sovereignty.23

It was perhaps the fear of ensuing conflict that drove recommendations for Indian policy in the territory by Davis’s superior, General Halleck, when he issued his report on

Alaska in 1868. Halleck began his report with population estimates of southeast Alaska

Natives provided by Davis and proceeded to list a number of Tlingit tribes, numbering

21 Michael Witgen, Infinity of Nations: How the Native New World Shaped Early North America. (University of Pennsylvania Press, 2013). 22 Legal scholar Harring also documents numerous occasions in which white settlers were compelled to adhere to Tlingit legal systems in a number of disputes and other interactions. Harring, “The Incorporation of Alaska Natives Under American Law.” 23 Indians of Aleutian Isles, H.R. Exec. Doc. No. 216, 40th Cong. 2d. Sess. 44

the total number of Tlingit in the tens of thousands and carefully noting which tribes had protested the “change of flags” over the territory. Native people vastly outnumbered

Davis’s military contingent, and while the Kake War and other military engagements could prove quite devastating, Tlingit control in southeast Alaska remained firm. Halleck also admitted that the white population barely numbered 2,000 and for this reason, he recommended against a territorial government, writing “it is particularly recommended that no superintendents or agents of the Indian Bureau be sent to Alaska at the present time.”24 While Halleck’s recommendations suggest perhaps a pragmatic approach, I argue that they reflect the inability of the U.S. to assert any kind of real sovereignty in

Alaska. The effects of this recommendation and the somewhat vague understanding of the territory as a whole and its role within the developing configuration of what would become the United States gained additional traction in the coming years as territorial and federal officials scrambled to define the territory and the legal landscape by which they sought to govern it.

The distinctions between Alaska Natives and American Indian tribes of the contiguous states and territories implicated in the correspondence of Davis and others regarding the Kake War and their presumed relationship with Alaska Native nations also became embedded in discourses of race and citizenship. Early on, ideas about race and the language of the Treaty of Cession regarding the legal status of the “inhabitants of the ceded territory” affected a fundamental divergence in the status of Alaska Natives vis-à- vis tribes of the contiguous states, which had been recognized in federal law and the

Supreme Court as possessing sovereignty and rights to land. Initially, Secretary of State

William Seward understood the laws of the United States with regard to Indian nations to

24 Annual report of the secretary of war 1868 (Washington: Government Printing Office, 1868), 38-42. 45

extend “ipso facto” to Alaska. In 1869, he wrote that, according to “the case of Harrison v. Cross,” that “upon the addition to the United States of new territory by conquest or cession, the acts regulating foreign commerce attach to and take effect within such territory.”25 This extension of laws, according to Seward, applied to “intercourse with the

Indian tribes,” which “have the character of dependent nations” as did the legal definition of Indian Country, which he argued Congress had established as “all that part of the

United States west of the Mississippi and not within the States of Missouri and Louisiana, or the Territory of Arkansas.” He concluded, importantly, “by a happy elasticity of expression, widening as our dominion widens, includes the territory ceded by Russia.”26

While Seward clearly understood Alaska as settler colonial space in this instance, other federal officials disagreed, throwing Seward’s initial understanding of the legal status of Alaska Natives and the territory itself into question. Early on in the U.S. occupation of Alaska, Interior Secretary Columbus Delano considered a collection of correspondence from Commissioner of Indian Affairs Frances Walker, William Borrows of the U.S. Army, chairman of the board of peace commissioners Felix Brunot, and

Honorable L.M. Morrill, regarding appropriations for “the Indian Department, etc., for

1870-1871.” The appropriations bill had been amended in the Senate with a “proviso for the support of industrial and other schools among the Indian tribes, not otherwise provided for” and accompanied by a resolution requesting that “the President be respectfully requested to place the Indians of Alaska under the care of the Department of the Interior…and that the board respectfully recommend that the sum” which had been

25 William Seward to Secretary of War, January 30, 1869, “Jurisdiction of the War Department over the Territory of Alaska,” Executive Document No. 135, House of Representatives, 44th Cong., 1st Sess., 5. 26 Ibid. 46

appropriated “for educating Indians not otherwise provided for,” be devoted to the

“Indians of Alaska.”27

Commissioner of Indian Affairs Frances Walker protested the proposed allocation of funds for Alaska Natives from the Indian Bureau on the grounds of race and citizenship stemming from his distinction between Alaska Natives and Indians of the contiguous states and territories. As discussed in the introduction to this dissertation, Walker’s Asian racialization of Alaska Natives along with his concerns that they would be disqualified from U.S. citizenship should they be classified as Indians gave rise to his decision to exclude them from the jurisdiction of the OIA.28 In his refusal of “Indian Status,” Walker inherently denied Alaska Native nationhood, contributing significantly to the developing settler imperial framework by which white settlers, territorial and federal officials, and corporate interests would be able to exploit Alaska’s land and resources without reckoning with Native sovereignty. In the context of Walker’s decision, Davis’s understanding of the Army’s obligations—or lack thereof—a few years earlier seems consistent. In this regard, the actions of these two men and their understanding of the territory and its inhabitants did not settle the legal status of Alaska Natives. Rather it furthered the uncertainties that came to characterize subsequent legislation and policy at the territorial and federal level regarding Alaska Native affairs. Alaska Natives remained illegible to non-Natives both as “domestic dependent nations” or as citizens, and the uncertainty that this established in the minds of non-Native policy makers and corporate agents gave rise to an incredible number of legal maneuvers that characterized settler

27 Letter from the Secretary of the Interior relative to The condition of the inhabitants of Alaska who resided there prior to the date of our acquisition of that Territory, H.R. Ex. Doc no. 197, 42 Congress., 2d. Session. 28 Ibid; Hu Pegues, “Interrogating Intimacies.” 47

imperial space and the tensions between competing understandings of the territory. If

Alaska Natives were not “Indians” in the legal sense, and they were not citizens in the legal sense, what (to territorial and federal officials) was their status and what were their rights? Also, what exactly was Alaska? Fundamentally to settler imperial legal formations, the “uncertainty” on behalf of territorial and federal officials did not hit the

“pause” button on U.S. colonial and imperial projects in the territory, but rather facilitated them in new ways. Decade after decade, legislation, policy, and court decisions continued to maintain the “status quo” in Alaska, which became increasingly useful in terms of state and corporate resource extraction and military strategy. As these officials quickly learned, the “status quo” of unsettled legal status proved useful for Alaska

Natives as they too harnessed the flexibility their liminal legal legibility afforded them in shaping policies and practices that would serve their interests. The refusal of “Indian status” and nationhood on behalf of the U.S. in spite of the inability of the U.S. to assert sovereignty over Alaska Native nations in the early years of Alaska’s occupation and the flexibility this reality would afford became evident in the selective application of specific provisions of the Trade and Intercourse Acts to the territory and the conflict over whether or not Alaska was “Indian Country.”

“Not Indian Country in Any Other Sense”: Widening the Gap

The question among territorial and federal officials regarding the legal status of

Alaska Natives and that of the territory deepened almost immediately after Commissioner

Walker’s designation of Alaska Natives as outside the legal status of tribes in the contiguous states and territories. At the heart of the ensuing conflict was the regulation of

trade with Alaska Native tribes and whether or not or to what extent Alaska constituted

“Indian Country.” The Trade and Intercourse Acts (also referred to as the Nonintercourse

Acts or Indian Nonintercourse Acts) were a series of statutes first enacted in 1790, renewed in 1793, 1796, 1799, 1802, and made permanent in 1834. Aimed at restricting the actions of whites and regulating trade between the non-Natives and Indian tribes, “the federal government recognized tribal ownership of Indian land in the trade and intercourse acts as well.”29 A reflection of the developing Doctrine of Discovery, all trade and intercourse acts had a preemptive land clause, and the final 1834 Act made such provisions permanent, declaring that “no purchase, grant, lease, or other conveyance of land, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same shall be made by treaty or convention entered into pursuant to the Constitution.” The 1834 Act also defined “Indian Country” as

“all land west of the Mississippi (and not within the states of Missouri or Louisiana or the territory of Arkansas) and all lands east of the Mississippi “not within any state to which the Indian title has not been extinguished.”30 “Indian Country” was, and continues to be, fundamental to structuring the legal relationship of Indian tribes to federal and state governments concerning matters of tribal sovereignty and jurisdiction. Lands considered

Indian Country (at least until passage of the Major Crimes Act in 1883 which usurped

Native jurisdiction for specific crimes) were subject to Indian jurisdiction if one Indian against another committed the offenses, thus the debate over to what extent Alaska constituted Indian Country was inherently about the legal status of Alaska Natives.31 In

29 David Wilkins and Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law, 51. 30 Ibid. 31 Subject to tribal jurisdiction with some exceptions. See General Crimes Act 1817, 18 U.S.C. 1152 49

recognizing Native jurisdiction, the federal government would be, to a degree, recognizing tribal sovereignty.

Thus, the Trade and Intercourse Acts had broad implications regarding Native sovereignty, land, and nationhood. They had provided the basis for numerous land claims and were also at the core of Worcester v. Georgia (1832), the third Supreme Court case in the Marshall Trilogy. In considering the Worcester, Chief Justice John Marshall interpreted the Intercourse Acts as that which determined that Indian nations should be considered as “distinct political communities, having territorial boundaries, within which their authority is exclusive and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.”32 Thus, the decision in Worcester declared the relationship between Indian tribes and the United

States to be that of nations and affirmed that “treaty negotiation, not military coercion, was the foundation of U.S. Indian policy.”33 By the time Commissioner Walker made his opinion as to the distinctions between American Indians and Alaska Natives known,

Congress had just the year before declared an end to treaty making with Indian nations in

1871. Despite Secretary of State William Seward’s initial assumptions in 1869 that the relationship of Indian nations to the U.S. in the contiguous states would be carried into the new territory, in the four years that passed after the purchase of the Alaska territory and the end of treaty making in 1871, the federal government had abstained from treaty making with Alaska Natives.34 We have seen, in the statements of Jefferson C. Davis,

32 Worcester v Georgia 31 U.S. (6 Pet.) 515 (1832). 33 Ibid. 34 It might be worth thinking about this decision in the context of Alaska in that Vincent Colyer, in his recommendations to the Department of the Interior in 1869, argued that Alaska Natives ought to be included within the provisions of the 15th Amendment—that which enfranchised black voters in the wake of the Civil War—while “wild tribes” should be put on reservations. This perhaps reflects a shift in thinking leading up to the end of treaty making. The process by which this became policy—attached as a 50

how federal officials assumed the refusal of treaty making would side-step issues of land ownership and conflict with tribes. As these officials grappled with their relationship with

Alaska Native nations and Alaska’s role within the framework of U.S. empire, the Tlingit continued to hold a powerful position within international trade with the Hudson’s Bay

Company and U.S. traders and commercial interests, continuously defying U.S. authority and assaults on their nationhood status.

At first, the War Department, heeding Seward’s expectations, exercised full Indian

Country authority in Alaska, and furthermore, in 1855 (prior to the purchase of Alaska, but used as supporting evidence that Alaska was Indian Country) the attorney general had stipulated that “Indian Country” was not limited by specific geographical boundaries but rather “applies in general to such portions of the acquired territory of the United States, as are in the actual occupation of the Indian tribes, and wherein their title of occupancy has not been extinguished.” This question of U.S. jurisdiction in Alaska and whether or not

Alaska constituted Indian Country—and, by default, the relationship of Alaska Native tribes to the federal government—made its way to court in 1872 with the arrest and detainment of Ferueta Seveloff, “a Sitka ‘Creole,’ on charges of selling liquor to ‘one

John Doe, an Indian,’ and of distilling spirits without paying taxes.” To the government,

Seveloff was in clear violation of section 20 of the 1834 Intercourse Act that prohibited the introduction of spirituous liquors into Indian Country.35

What happened next confounded expectations for Indian policy in Alaska and frameworks for U.S. empire building and expansion. Federal Oregon District Court Judge

Matthew P. Deady, in deciding Seveloff, determined that Alaska was not Indian Country.

rider to an appropriations bill as part of an ongoing struggle between the House and the Senate about who should control Indian Affairs—might be more complicated. 35 Harring, “Incorporation of Alaska Natives Under American Law.” 51

Deady decided that despite the fact that Alaska was a territory of the United States that was “owned or inhabited by Indians in whole,” it did not automatically mean that Alaska was Indian Country. Therefore, he concluded that the Intercourse Act of 1834 did not extend “propria vigore” over the territory of Alaska upon its purchase by the United

States from Russia. Instead, he contended that the 1834 Act was a local statute and must be explicitly extended by Congress over additional territories that were acquired subsequent its enactment. The only statute applicable to Alaska at the time was an extension of Oregon’s laws regarding ‘customs, commerce and navigation,’ which, to

Deady, did not include the Intercourse Acts.

Congress responded the following year (1873) by amending the 1868 Alaska Act that had extended Oregon’s laws relating to “customs, commerce, and navigation” by adding parts of the 1834 Intercourse Acts. However, Congress extended only sections 20 and 21 to the Alaska territory. In doing so, Congress made a conscious decision to extend statutes that would thereby criminalize Alaska Native trade engagements that involved liquor. Importantly, by deciding not to extend the acts in their entirety, Congress created a distinction by which lawmakers and court officials could (and did argue) that Alaska was not Indian Country, one of the key elements of which was un-extinguished aboriginal title. If un-extinguished aboriginal title constituted Indian Country, and Alaska was not

Indian Country, then lawmakers and territorial and federal officials could, and indeed many did, conclude that there was no aboriginal title in Alaska, or that the Treaty of

Cession had extinguished it.

Additionally, the decision to exclude Alaska Natives from the other provisions of the act continued their exclusion from the purview of the OIA, as the 1834 Act had also

established the basis for operations of the Indian Bureau in the contiguous states and territories and the establishment of Indian offices and Indian agents in Indian Country.

These divergences, while perhaps at the time interpreted as a pragmatic response to the exigencies of military authority in Alaska and the outcome of the Seveloff case, had long reaching implications as Alaska Natives and their future claims against the government for land were set upon a different legal footing entirely than that of Indian tribes of the contiguous states and territories. These decisions deepened settler imperial tensions whereby Alaska Natives and the territory of Alaska itself came to be increasingly situated partially outside of policies (and partially inside) that governed what territorial and federal officials could understand as “properly national territory.” Alaska—to them—was something else.

While not recognizing Tlingit sovereignty through the extension of the 1834 Trade and Intercourse Acts in their entirety, the federal government and white settlers in subsequent years could do little to impact Tlingit control on all trade in the area of both forbidden items—liquor and the ingredients to make liquor—as well as legal items and with whom they traded them. Shortly after the decision in Seveloff in 1877, the War

Department removed the Army as the primary authority in Alaska and replaced it with the Navy. Rather than establishing a concrete legal framework by which to engage

Alaska Natives, Naval authorities inherited the same ambiguities and tenuous nature of occupation as did their predecessors.

For example, his Report as to the Operations of the U.S. Ship Jamestown,

Commander L.A. Beardslee remarked quite early in his tenure in Alaska that even after ten years of U.S. occupation, Alaska remained squarely in Tlingit control. Beardslee

lamented that since the “withdrawal of all military force, and the failure to substitute in its stead any form of civil government,” the lack of U.S. formal presence had left white settlers and Tlingit “to get along with each other as best they might.” While portraying these circumstances as somewhat equal in terms of checks and balances, it becomes clear further in the report that Beardslee and all non-Natives were, of course, vastly outnumbered and beholden to Tlingit authority. He wrote that even at his post in Sitka, which had also been the location of the heaviest Russian presence, “should our course in handling them be such as to excite opposition of the Indians, our physical force would not prove equal to the task of subduing them,” and that it was therefore advisable to engage with them “with their good will and consent.”36 Beardslee, in all his naval might and authority, was no match against the Tlingit, and he knew it.

Furthermore, Beardslee and his other Interior and War Department officials along with his predecessors of the previous decades had been unable to control trade between

Tlingit (mostly Chilkat) and the Hudson’s Bay Company and tribes that resided further in the interior of southeast Alaska and British Columbia, nor had any miners been able to venture into Chilkat territory (located north of Juneau). Military officers and customs agents detailed their inability to prohibit “illicit trade” and “smuggling” among Tlingit tribes. Of significant concern to military officials was the trade in “guns, powder, and whiskey” between the Tlingit and the Hudson Bay Company in addition to the continued habit of Tlingit and Haida hunting “even in improper season.”37 Tlingit and Haida refused

36 L.A. Beardslee, Report of Captain L.A. Beardslee, U.S. Navy, relative to affairs in Alaska, and the operations of the U.S.S. Jamestown, under his command, while in the waters of that territory (Washington D.C.: USGPO, 1882), 44. 37 Henry K Kalussowth to Assistant Secretary of the Treasury, July 17, 1868, 31 M430 Interior Department Territorial Papers: Alaska, 1869‑1911, Reel 1, National Archives and Records Administration, Washington D.C. 54

the imposition of U.S. law and regulations, and these officials were powerless to enforce them. Furthermore, the inability of the customs agent or the Army to interfere with

Tlingit trade in any substantial way at the time and for nearly two decades after the purchase of the territory from Russia, generated concerns that any attempt to restrict trade would unfortunately result in “creating unchecked foreign competition” in which the

Tlingit would leverage their relationship with the Hudson Bay Company and stymie the profitability of U.S. traders.38 Rather than purchasing a last frontier, the U.S. had inserted itself as really nothing more than a contingent interloper in a sophisticated world of international trade.

It was also likely that U.S. inability to make any kind of inroads in terms of sovereignty, trade, and settlement increased the urgency with which non-Natives in

Alaska began clamoring for a territorial government and the extension of U.S. land laws.

It is here that we see a shift in U.S. tactics in Alaska and the growing tensions between settler colonial and imperial understandings of the territory; rather than attempting to regulate Tlingit trade through military enforcement of prohibitions of liquor and firearms,

Commander Beardslee and other non-Natives in the territory turned to law to give them the foothold they sought in staking claim to Alaska’s land and resources.

“Or Now Claimed By Them”: Translating Policy Uncertainties into Legislative Ambiguities With the increasing demands for “law and order” on behalf of white settlers, missionaries and federal and military officials turned to Congress in hopes of securing a territorial form of government that would expand civil and criminal jurisdiction while providing a means by which white settlers could stake a permanent claim in the land. The

38 Ibid. 55

debates that followed and the resulting legislation reveal the extent to which federal officials were both unwilling and perhaps uncertain about their ability to effectively organize Alaska as a Territory. These early legislative attempts to render Alaska legible to the legal frameworks of U.S. expansion are part and parcel of settler imperialism in that they situate the territory and the status of Alaska Natives as somewhere in between settler colonial and imperial governance.

Congressional debates about what would become known as the 1884 Organic Act

(which, consequently, became one of the most important pieces of legislation in terms of future Alaska Native land claims) exemplifies these settler imperial tensions in that it wholly failed to establish any concrete designations of exactly what the territory’s relationship and that of Alaska Natives with the U.S. was. In this way, the 1884 Organic

Act further engendered a discourse of legal uncertainty regarding Alaska Natives, their land, and their sovereignty in the minds of territorial and federal officials. While debating appropriate legislation for the territory, congressmen argued over the extent to which the federal government was responsible for providing educational and other services for non-

Native residents who numbered only about 400 and the extent to which the U.S.

Constitution extended to the territory. Their conclusions and the logic by which they sustained them reveal the entangled nature of settler colonial and imperial readings of

Alaska and Alaska Natives.

Tellingly, one of the earliest amendments to the bill (H.R. 153) reveals anxieties that I argue arose from the lack of knowledge of the vast territory and the inability of the military to effectively assert any kind of meaningful sovereignty over Alaska Natives. In

January 1884, when Congress met to discuss amendments to H.R. 153, Senator Preston

Plumb (R-Kansas) moved that section 8 of the bill, which addressed Native land rights, be expanded. As written, the bill protected Alaska Native rights to land in their “use and occupation,” and Plumb’s amendment added the phrase “or now claimed by them.” He argued that the vagueness of the phrase “use and occupation” could be construed to be a space “2 feet by 6 to each Indian” and could therefore “land them in the sea” should white men attempt to construe the phrase literally. Plumb’s argument is revealing, in that it foreshadows the ambiguity surrounding interpretations of “use and occupation” that would come to underpin 20th century Native land claims as territorial and federal officials maintained a discourse of uncertainty around what constituted “use and occupation” as it related to their alternate perceptions of Alaska Native sovereignty and legal status vis-a- vis American Indians.39

Plumb elaborated, and in furthering his arguments he belies the illusions of empire that characterized assumptions of U.S. ownership of and sovereignty over the recently acquired territory while also revealing how discourses of uncertainty had woven their way into discussions of Alaska Native land ownership. He stated that he did not wish “to impose a government on several thousand Indians, for the purpose of assuming to consult the convenience of about four hundred white people,” and that “pending an investigation of this question, I propose that the Indian shall at least have as many rights after the passage of this bill as he had before. I do not know that they have any rights at all,” but argued that the bill “shall leave the Indians exactly where it found them…until we come to deal with this question in some permanent method.” The logic that because of the uncertainty around Native land ownership the federal government should maintain a status quo of uncertainty rather than make a definitive designation that would likely

39 Congressional Record, House, 48th Congress., 1st. Sess. January 21 1884. 57

require they enter into nation-to-nation negotiations for land, would come to underlie all future attempts to resolve Alaska Native land and sovereignty claims against the U.S.

This is also the core of settler imperial tensions—the legal acrobatics performed by lawmakers in order to avoid making a decision. As Alaska Native land and sovereignty conflicts deepened in the 20th century, territorial and federal officials along with corporate agents increasingly relied on the ambiguity of these earlier legal framings in postponing and denying the recognition of Alaska Native sovereignty. These tensions reflect alternate framings of territorial Alaska as an extension of westward expansion in which case existing frameworks of Indian policy and law would be thought to apply, or the United States’ inaugural experiment in an overseas imperialism in which the nature of governance and legal status of the territory’s indigenous people in relation to the federal government was perceived by these officials and lawmakers as distinct from that which characterized this relationship to the contiguous states and territories.

The settler imperial function of these uncertainties is apparent in the one thing that the bill did make certain: while holding Alaska Native land rights, sovereignty, and legal status in suspension, Congress thought it appropriate to extend the mining laws of the

United States over the territory to appease white miners who sought to extract resources from the land. In a report on the bill, the House Committee on Territories argued that it would be “obviously unjust to throw the whole district open to settlement under our land laws until we are advised what just claim the Indians may have upon the land,” which

“have not yet been the subject of negotiation or injury.”40 Interestingly, they agreed that

“these objections did not seem to the committee to apply to the proposition to extend the

40 House Report No. 476, 48th Congress 1st Session. 58

mining laws over Alaska.”41 In other words, while settlement and the designation of

Alaska as a settler space was suspended—and the uncertainty surrounding the legal status of Alaska Natives and their land consciously maintained—the extraction of resources by non-Natives was made possible. The failure to recognize Alaska Native land and sovereignty rights in the name of uncertainty and ambiguity thus proved beneficial to those seeking to exploit the territory’s natural resources without reckoning with Native nationhood and ownership of the land. While not named explicitly or discussed at this time, a similar set of circumstances framed commercial fishing operations in the early

20th century and their ability to infringe on Native fisheries, disavowing Alaska Native rights to their own resources and land on the premises that they were not afforded the same kind of recognition as their counterparts in the contiguous states. Thus, this language set in motion a process by which Alaska Native dispossession was concealed under a cloak of legal uncertainty as to the nature of Alaska Native land rights that was read through perceived distinctions from the legal status of American Indians. The decision to not make a decision in fact constituted a decision in and of itself, with Alaska

Native land being lost, and sovereignty denied.

Confusion regarding the nature of the territory and federal responsibility to inhabitants, Native and non, deepened further when Congress debated Section 13 of the bill that considered the federal government’s obligation to provide education in the territory. In this regard, the bill sought to establish “free public schools for the instruction of children and youths of proper age” and gave the Commissioner of Education, with the consent of those who through “private benevolence” or “religious society” had set up free schools in the district, the authority to “adopt said schools as part of the school system of

41 Ibid. 59

the district.” Most importantly, section 13 stipulated that “Such schools shall be open to all persons of proper age, without regard to race.”42 Senator Plumb, who had been instrumental in amending what became known as the “use and occupation” clause of the act, voiced his objection that an education system should be set up in the district when there were no means or methods by which taxes could be levied to cover the expenses.

His logic not only further reveals the confused nature of the legal status of the territory and Alaska Natives, but also that of white settlers in the territory. He argued that while such a broad construing of educational services for Native people at the time had not been done “with any other tribe of Indians under our jurisdiction,’ his main objection was that in establishing schools without regard to race, “the children of white people up there, who are not taxed, but for whose benefit this government is to be provided, shall [in addition to Indians] also have their schools paid for out of the public Treasury.”43

The refusal of the BIA to assume jurisdiction over Alaska Native affairs had left a vacuum in terms of federal responsibility to the territory, Alaska Natives, and non-Native settlers. The attempt to fill that legal space with the Bureau of Education (BOE) and missionary “Indian agents” while simultaneously refusing the organization of the district into a territory with a territorial legislature possessing the power to collect taxes gave rise to Plumb’s objections. In this context, the supplementation of BIA jurisdiction and policy with that of the BOE, and including a phrase in the 1884 act that was interpreted to guarantee the ability of white children to attend these schools rather than prevent the exclusion of Native children is curious. Plumb’s objections due to the lack of taxation of non-Natives while conceding to an appropriation for the education of Alaska Natives

42 Congressional Record, Senate, 48th Congress, 1st Session, January 22. 43 Ibid. 60

even though in his mind this policy diverged from that in the contiguous states and territories speaks to the tensions surrounding Alaska as a non-settler space. The withholding of a territorial legislature and an ability to tax, to Plumb, placed settlers as outside the particular obligations of the federal government.

Perhaps the most important development arising from Plumb’s questions regarding the establishment of a territorial legislature—which would have constituted an official

“organization” of the district into a territory—was the conflict his questions generated in terms of the nature of the relationship of Alaska to the United States and legal understandings of territories more generally. Senator Charles Jones (D-Florida) found the proposed 1884 Organic Act to be “a most remarkable bill, because I do not think there is anything like it in our annals.” He continued that it was most peculiar to set up a government for a territory without provision “for a legislative establishment,” and the only reason he could see as to why that would be the case was that “the laws of the

United States are not in force in this Territory, nor the Constitution of the United States, but [rather] the whole code of Oregon is carried in there by the force of this bill while the laws of the United States are carefully excluded.” He suggested that this might indeed be a violation of the Treaty of Cession that had guaranteed “inhabitants of the ceded territory…with the exception of the uncivilized tribes” all the “rights, advantages, and immunities of citizens of the United States.”44 Senator Augustus Hill Garland (D-

Arkansas) attempted to intervene by insisting that section 1891 of the Revised Statutes of the United States relating to all U.S. territories had carried the Constitution to Alaska.

44 Ibid. 61

Jones objected, reminding the Senate that Alaska was a judicial district and that he did

“not think it is plain that this is to be an organized territory.”45

Senator Garland’s response further demonstrated the function of settler imperial tensions in suspending Alaska in a liminal space that was neither inside nor outside what was considered integral to national space and which consequently framed relations between Alaska Natives and the federal government. He argued that while he had “never been satisfied in my mind exactly what we wanted with [Alaska] and why the necessity of purchasing it, but we did buy it, and now the question is, what shall we do with it?

This bill attempts to make some provision in the way of putting the Territory in some organized shape. The bill reported is not a usual bill; it is not a bill going the full length of the Territorial governments as we understand them” and that while the bill was unusual and incomplete, Congress would no doubt be “looking to a better and more thorough and more perfect form of government [for the territory] after a while.”

(emphasis mine) Garland’s discussion of the peculiar nature of the bill and his assumptions that at some indefinite future—“after a while”—Congress would reach a concrete designation of the legal status of the territory is at the core of settler imperialism in Alaska, demonstrating how law (in this case the 1884 Organic Act) was structured such that it maintained ambiguity and uncertainty under the assumption that such ambiguities and uncertainties would be resolved later. As later chapters will demonstrate,

Congress passed a number of laws of this nature. The postponement of such decisions— essentially the decision to not make a decision—is precisely what mobilized settler imperial relations and allowed the U.S. federal government to carry on the disavowal of

Alaska Native sovereignty and rights to the land for decades.

45 Congressional Record, Senate, 48th Congress, 1st Session, January 22. 62

The Senate moved to executive session, and the next day Senator Jones demanded further explanation about the Constitutional situation of Alaska. He took the position

“that not one provision under [title 23 section 1891 of the Revised Statutes] relating to the Territories of the United States can be said to apply to the Territory embraced in this bill and I say moreover that it was not intended that it should.”46 He supported his claims that the Revised Statutes included a clause that guaranteed every Territory to have the right “to send a Delegate to the House of Representatives of the United States,” a provision which the Organic Act of 1884 had omitted. As he continued, he questioned as to whether or not the Constitution applied in the territories of its own power without any special provision from Congress specifically extending it there came to focus again on the extension of the mining laws of the United States to Alaska while Congress withheld all other statutes regarding land laws. He argued that had the Constitution applied to

Alaska, there would have been no need to extend only those statutes as they related to mining claims. Important in his line of questioning is that the report on the bill, discussed above, had indicated that the reason for only extending mining laws had been because the committee could not ascertain exactly what the rights of Alaska Natives to the land were.

I argue that this was due to the fact that Alaska remained wholly a Native controlled space despite the illusions of U.S. sovereignty in the region.

The same legal and jurisdictional problems arose again on January 24th (the next day) when the Senate convened to discuss further amendments to H.R. 153, this time with regard to the transport of intoxicating liquors to the territory—the exact nature of the

District Court Case that Judge Deady had decided over ten years before. The proposed

46 Congressional Record, Senate, 48th Congress 1st Session, January 23, 1884. While congressman continuously refer to Alaska as a territory, it is still a district until 1912, when Congress made it an incorporated territory. 63

amendment would have codified in the Organic Act the articles of the Trade and

Intercourse Acts that prohibited the sale or manufacture of alcohol and firearms in Indian

Country. Designating Alaska as “Indian Country” even in this restricted sense seemed to confound understandings of the territory and Alaska Natives as a whole. Some senators argued that the laws in Alaska in regard to liquor sale and importation ought to be uniform with those in the United States and, once again, the document that provided the point of contention was the 1867 Treaty of Cession. Given that the U.S. had an obligation under the Treaty of Cession with Russia to guarantee inhabitants of the ceded territory excluding “uncivilized” tribes, many thought it unconstitutional to prohibit the importation of liquor, or any other commodity, to the district. Conversely, many also voiced their opinions that if alcohol were permitted in Alaska, then it ought to be permitted in all areas within the U.S. that were legally considered Indian Country.

These debates came down, in turn, to the relationship of Alaska Natives to the federal government and to American Indian tribes in the contiguous states and territories. Senator

Plumb, whose amendment to include lands “now claimed” by Alaska Natives in the use and occupation clause, ventured his option that “we are legislating for a Territory in which a large majority of the people are Indians…whether you call them Aleuts or

Sioux…they are still Indians according to the proper application of that generic phrase” and for that reason ought to be treated similarly.47 Senator Jones disagreed, arguing first and foremost that “I think the Senator from Kansas has fallen into the grave error in classifying the Indians of Alaska with our Indians. The condition of the two classes is very different.” He continued that “this territory is not in the condition of the Territory

47 Ibid. January 24th 64

known as Indian Territory” because of “a solemn treaty stipulation” that guaranteed

“Russian people there the rights of citizens.”48

As we have seen, the language in the Treaty of Cession and its requirement that inhabitants of the ceded territory receive the rights and benefits of U.S. citizenship had far reaching consequences for the development of settler imperialism. This stipulation for the naturalization of inhabitants who remained in the ceded territory along with the distinctions the treaty made between civilized and uncivilized tribes became the operative element in generating uncertainty and ambiguity in the minds of territorial and federal officials as to the status of Alaska Natives. On the one hand, it guaranteed naturalization as U.S. citizens all in the territory who were not deemed to be members of “uncivilized tribes,” while not clarifying what exactly constituted an “uncivilized tribe.” In the context of the Asian racialization of Alaska Natives by Commissioner of Indian Affairs Francis

Walker and others a decade earlier and his insistence that Alaska Natives were not to be considered similarly with American Indians in the contiguous states on account of their being more advanced, the Treaty of Cession not only blurred the lines of race and citizenship. It also disavowed Alaska Native sovereignty and land rights in ways that would become fundamental to settler imperialism in Alaska in the coming decades as

Alaska Natives sought recognition of their political rights through citizenship in the absence of treaties that recognized a nation-to-nation relationship.49 Indeed, Senator

Jones argued that attempting to impose restrictions that accompanied the designation of the territory as “Indian Country” would be unfair to Russians who remained in the

48 Ibid. January 24th 49 Hu Pegues, “Interrogating Intimacies.” 65

territory and Alaska Natives who “compare favorably with any class of immigrants that are landed on these shores from European countries.”50

Others agreed. Senator Wilkinson Call (D-Florida) argued that “It appears to me that the Territory of Alaska is already within the United States” and therefore not Indian

Country. He observed that “the Government of the United States has always recognized the territorial sovereignty, to a limited extent, of the Indian tribes who inhabit this country.” Because of this, he argued that the Treaty of Cession “guaranteeing to the inhabitants the same commercial rights that the people of this country have,” designated the territory of Alaska and Alaska as “different.”51 By using the arbitrary language regarding “uncivilized tribes” in the treaty to both deny sovereignty and to undermine claims to citizenship by Alaska Natives, the senate established a fundamental foundation in which they considered the relationship of Alaska Natives to the federal government as vague, uncertain, and ambiguous, but most certainly different than that of Native nations and people in the contiguous states and territories.

The Committee on Territories sustained these ambiguities and the contradictory nature of the territory itself when it reported the bill back to the Senate in February. They reported that “your committee have not deemed it necessary to give a full territorial organization to this Territory,” rather opting to provide for an appointed “governor, district attorney, marshal, judge, clerk, and four court commissioners.” They concluded that given that the population of Alaska was 33,426, “of which 430 were whites,” a limited form of government would “meet the present and proximate needs of the

50 Congressional Record, Senate, 48th Congress 1st Session, January 23, 1884. 51 Ibid. 66

people.”52 In this sense the 1884 Organic Act, as it came to be passed, failed to meet the obligations of citizenship with regard to the inhabitants of the ceded territory who were not members of what Congress deemed “uncivilized tribes.” While under the pretense of meeting the “present and proximate needs of the people,” the refusal to afford representation and a territorial legislature was more than likely made on account of race, given the scant number of white inhabitants, and therefore perhaps aimed at the preventing Alaska Natives from engaging the U.S. government through citizenship or the recognition of tribal status. Furthermore, and even more revealing is that in the following section of the report, the committee announced that it had likewise decided not to extend the land laws of the United States to the territory. One of the primary reasons for this decision was that “the rights of the Indians to the land, or some necessary part of it, have not yet been the subject of negotiation or inquiry.”53 This, in effect, became one of the fundamental practices of settler imperialism: territorial and federal officials—using the language of the Treaty of Cession—would hold in suspension both sovereignty and citizenship rights of Alaska Natives by claiming an uncertainty the resolution of which they projected into an indefinite future to be unresolved through indefinite means.

In subsequent decades, sustaining these tensions allowed for an appropriation of land and resources to commence without reckoning with Alaska Native sovereignty, and, these effects became increasingly apparent as territorial and federal officials, judges, commercial corporate interests, and settlers exploited these distinctions and disavowals to their gain. Simultaneously protecting Alaska Native land through the “use and occupation” clause while distinguishing their legal status from that of American Indians

52 Report no. 476 48th Congress, 1st Session February 25, 1884. 53 Ibid. 67

severed land from sovereignty, a move that became a hallmark of settler imperial techniques throughout the 19th and 20th centuries. Additionally, the refusal to extend U.S. land laws in the 1884 act also reveals an anxiety about Native control of land, Native legal systems, and the ability of the small contingent of settlers to exact any real authority or ability to apply them in the face of Native sovereignty.

“What, then, is the legal status of Alaska Indians?”: “Dependent Subjects” and Native Affirmations of Sovereignty In the years immediately following enactment of the 1884 Organic Act, two court decisions involving Alaska Natives demonstrated the extent to which the denial of Alaska

Native sovereignty and U.S. citizenship as established in the interpretation of the Treaty of Cession and further codified in the 1884 Act functioned to allow territorial and federal officials to further restrict Native rights and ground settler imperial tensions in the territorial landscape. First, in 1885, the District Court ruled in the case of United States v.

Kie and then in 1886 in a case involving Tlingit slavery, Ex Parte Sah Quah. Though the

1884 Organic Act was amended in 1900 and a full territorial form of government created for Alaska in 1913, Kie, and Sah Quah, along with the earlier Seveloff decision, had unparalleled consequences for Tlingit sovereignty and that of all Alaska Natives.

Collectively, these cases represent Tlingit attempts to assert their sovereignty and the ways the courts would further construct an ambiguous, liminal legal status for Alaska

Natives within the U.S. legal system.

The case of U.S. v. Kie decided once again that Alaska did not constitute Indian

Country, save for the two sections of the Trade and Intercourse Acts relating to the importation and manufacture of liquor and firearms. The opportunity to further define the

nature of the territory and the legal relationship of Alaska Natives to the federal government came in 1885 when Deady’s decision in Kie represented what one legal scholar has stated was “a change in policy” regarding the attempts of American authorities to “apply their law in intra-Tlingit matters.”54 The case arose when a Tlingit man, Charles Kie, allegedly murdered his Tlingit wife Nancy on the premise that he had evidence that she had committed adultery. Up until this point, U.S. authorities had been content to allow Tlingit to resolve their own criminal matters. However, when local

Tlingit declined to punish Kie, neighboring whites pressured the U.S. marshal to arrest him and take him to Sitka for trial.55

The case was heard in Alaska’s new District Court, which had been created under the

1884 Organic Act, Kie was found guilty of manslaughter, sentenced to ten years in prison and a fine of $100. Kie’s attorney cited the recent case of Crow Dog which recognized, to a degree, tribal sovereignty in that the U.S. did not have jurisdiction in crimes committed by Indians against other Indians. Alaska’s first appointed District Judge McAllister decided, like Deady, that Alaska did not constitute Indian Country. While citing Deady’s reasoning in Seveloff that Alaska was “not Indian Country in any other sense” save for sections 20 & 21 of the Intercourse Acts of 1834, he went on to argue that the guarantees of the Treaty of Cession with regard to non-Native inhabitants prohibited a declaration of the territory as Indian Country. In a blatant denial of tribal law and Alaska Native sovereignty in favor of the rights of settlers, he wrote that while Alaska “is inhabited, to a limited extent, by white persons, whose rights, property, and religion which were guaranteed by the treaty between the United States and Russia, should be protected by the

54 Sidney L. Harring, Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (Cambridge: Cambridge University Press, 1994), 232. 55 Ibid. 69

United States, the whole territory cannot be subjected to the rules applied to ‘Indian country’ until congress should expressly render it subject to them.”56 He also defined

Indian Country to mean any area to which Indian title had not been extinguished, therefore interpreting the Treaty of Cession to have extinguished Alaska Native rights to land through aboriginal title given that Alaska was not designated Indian Country.57

The 1886 case of Sah Quah further crystallized how the distinctions made between

American Indians and Alaska Natives in the 19 years of U.S. occupation were fundamental to the disavowal of Tlingit sovereignty. The case has obscure origins, and legal scholar Sidney Harring has argued that the circumstances leading up to the case are more than likely characterized by white backlash against Tlingit resistance to the placement of their children in missionary schools—particularly those administered by the

Presbyterian missionary and Commissioner of Education in Alaska, Sheldon Jackson.

Jackson, discussed more thoroughly in the following chapter, was a staunch assimilationist and his efforts to assert authority over Tlingit legal, social, and political customs was met with stiff resistance.58 Because the BIA had refused to extend its jurisdiction over Alaska Natives, missionaries like Sheldon Jackson also acted as BOE officials and de facto Indian agents, and they wielded a great amount of authority. They sought, in southeast Alaska, to force the assimilation of the Tlingit and Haida through the destruction of the clan system and the conversion to Christianity accompanied by the transition to “civilized” living. In the late 19th century, these missionary BOE officials along with white settlers repeatedly sought to use the law to assert authority over Tlingit

56 U.S. v Kie, 1885. The case was apparently appealed and revisited in the Circuit Court of Oregon in 1886, where the judge reached the same conclusions. 57 Ibid. 58 Harring, Crow Dog’s Case 232. 70

legal, political, and social systems with varying degrees of success. Harring, in his examination of Ex parte Crow Dog and the ways this case came to bear on the legal status of Tlingit in Alaska, argues that the case was brought at the urging of white settlers and missionaries who expected that a case about the Tlingit practice of slavery would bring a harsh condemnation of Tlingit social and political customs, therefore justifying the expansion of white settler authority. This may be the case, though Sah Quah should also be read as an assertion of Tlingit sovereignty in spite of (or in response to) the decisions in Sevaloff and Kie. In his defense, Sa Quah’s owner, through his lawyer, contended that the courts had no right to make decisions regarding Tlingit legal systems, an argument grounded in Tlingit understandings of their relationship to the federal government as one between nations.

Harring’s account of the court transcripts indicate that Sah Quah “claimed to be a

Haida” who had been kidnapped as a child by Flathead Indians, and repeatedly sold until he reached Sitka. It was in Sitka with his current owner, Nah-ki-klan, that Sah Quah was brought to court to testify against his owner in petition for his freedom. From the transcripts, Harring contends that it is difficult to discern if Sah Quah truly considered himself a slave.59 Nevertheless, he argues that the fact of Sah Quah’s enslavement was not so important as the manner in which his lawyer argued that Tlingit slavery was subject to the provisions of the 13th Amendment. The lawyer stated that the extension of

U.S. law in the territory would have assimilative effects and that indeed, the Thirteenth

Amendment had been intended to apply everywhere in the U.S. and its territories. Most

59 See Harring Crow Dog’s Case, 234. Tlingit slavery, of course, should not be compared to chattel slavery as was practiced in the U.S. south. For example, Sah Quah did not live with his owner, and other individuals who testified in Sah Quah indicated that they exercised a great deal of autonomy and slavery was not a lifetime condition. 71

importantly, he argued that while “both Crow Dog and the Major Crimes Act contained language respecting the sovereignty of Indian tribes,” the Tlingit were organized by family groups and therefore were not tribes.”60 Thus, Sah Quah hinged on whether or not the court found that Alaska Natives occupied a similar legal status as Indians in the contiguous states and territories.

The judge’s decision that the 13th Amendment applied to Tlingit people further demonstrates the ways in which settler imperialism in Alaska was contingent on maintaining Alaska Natives outside the scope of federal Indian law and outside the institution of citizenship. Judge Dawson issued a decision in which he rejected the notion that Crow Dog and the Major Crimes Act—passed by Congress in 1885 in order to bring particular crimes committed by Native persons in Native territory under federal jurisdiction) applied in the territory. He concluded that because the Indian intercourse laws did not apply fully to the territory, that Alaska, as decided in Seveloff and Kie, was not Indian Country. As such, along with the fact that “no treaty ever [having] been made with the Alaska Indians or tribal independence recognized, they are not to be regarded as within the operation of the custom and policy of the government arising out of the ordinance of 1787…whereby Indian tribes of the United States have been treated as free and independent within their respective territories.” Then, he addressed the issue of citizenship, which is perhaps the most revealing element of his decision. If Alaska

Natives were not on the same footing as tribes in the states, then Dawson needed to elaborate on what, exactly, their status was in light of his argument. He wrote that “The

60 Ibid. 235; The Major Crimes Act was passed by Congress in response to Crow Dog, which had found that federal courts had no jurisdiction over crimes committed by Indians against another Indian on reservation land. It stipulated that 7 crimes would come under U.S. jurisdiction: murder manslaughter rape, assault with intent to kill, arson burglary, and larceny. 72

Alaska Indians, while not citizens within the full meaning of the term, are dependent subjects, amenable to the penal laws of the United States, and subject to the jurisdiction of its courts. (emphasis added) This term “dependent subjects” is fundamental to the crystallization of settler imperial law in that it represents Judge Dawson’s construction of a new legal category within the broader framework of U.S. empire. He located Alaska

Natives outside the legal category of “domestic dependent nations” that constituted the legal status by which the federal government had designated Indian nations. In doing so, he undermined Alaska Native collective sovereignty by defining the relationship of

Alaska Natives to the federal government as that between the nation-state and individual colonized subjects. Furthermore, in also locating Alaska Natives outside the bounds of citizenship, he located them between imperial and settler colonial governance. The phrase

“dependent subjects,” represents an interesting entanglement of “domestic dependent nation” and “colonial subject,” in which the construction of the legal status of Alaska

Natives sits in tension with both settler colonial framings of the territory, in which settlers and federal authorities would have attempted to map Indian policy onto Tlingit and Haida society, and understandings of Alaska as an imperial space, in which inhabitants of a territory not intended for inclusion in what would have been considered “properly national territory” would not be considered for citizenship.

Conclusion

The decision in Sah Quah marked an important moment in the developing legal framework that would come to define Alaska. This case seemed to solidify, in the minds of federal officials and lawmakers, Tlingit as outside the scope of recognition as independent sovereign nation—a status that would be applied to additional Alaska Native

nations: Inupiat, Yup’ik, Athabascan, Unangan, Aluttiq and Eyak. In this way,

“dependent subjects” represented the crux of settler imperialism in Alaska and the crystallization of a new legal framework around which subsequent legislation, court decisions, and policy congealed over the ensuing decades. While “dependent subjects” did not appear in subsequent legislation, policy, or court cases again, it continued to lurk in the background as subsequent territorial and federal officials and lawmakers continued to debate the legal status of Alaska Natives and Alaska Natives themselves navigated these shifting legalities as they strategized for the recognition of their rights. At the center of many of these debates was the issue of to what extent the federal government had obligations to Alaska Natives similar to that which characterized the relationship between the U.S. and Indian tribes, namely, the oft ignored trust obligation to act in the best interest of Native people and nations. The term “dependent subjects” implies a relationship in which the federal government is perhaps obliged to assume a guardianship role with respect to Alaska Natives. This possibility proved contentious because of the very way guardianship and wardship had been wed to Native sovereignty in Cherokee

Nation v. Georgia. If federal officials concluded that Alaska Natives were wards of the government, did that mean they occupied a similar legal status to American Indians? And if they did, what would that mean in terms of recognizing Alaska Native indigenous rights to land and sovereignty? The following chapters explore the ways both federal officials and Alaska Natives invoked those implications as Alaska Natives continued their struggle for sovereignty, their land, and U.S. citizenship.

Chapter 2: Reindeer in Trust: Indigeneity, Race, and Constructions of “Wardship,” in the Struggle for Native Economic Self-Determination

In May of 1917, five Alaska Native1 reindeer herders “elected at the Igloo

Reindeer Fair by the Delegates, as their Chiefs” and serving as Head Herders of Seward

Peninsula, signed and sent a petition to William Thomas Lopp, then Chief of the Alaska

Division of the U.S. Bureau of Education. In this petition, Oquilluk, George Ootenna,

John Sinnok, William Allookeck, and Thomas Tautuk protested the recent sale of reindeer by the reindeer Mission stations of Teller and Golovin, to white men.2 They argued “the Missions had received their deer to help the Natives and had solemnly promised not to sell their deer,” and that in doing so they “start[ed] something only [to] hurt us.” The herders requested Lopp and the Bureau of Education--the government agency that administered the reindeer herding enterprise--to “inform all the Missions who are holding deer now” not to sell them.3

Lopp agreed with the petitioners and soon responded, writing to the Head Herders that “you certainly now have reason to be alarmed,” and “you know that when the female stock gets into the hands of the whites they will never come back” into Native hands again, and that “they [whites] will attempt to own and control all the reindeer belonging

1 Alaska Native reindeer herders were typically Iñupiaq or Yup’ik. While having the names of individual herders, I haven’t been able to consistently discern from the record the specific tribal and/or language affiliations of these men and women. In cases where such precise identification is not available I use the term “Alaska Native.” Likewise, in primary source documents non-Native speakers and writers use a racialized and deeply problematic terminology and refer to Alaska Native herders and Sami herders as “Eskimo” and “Lapps,” respectively. Where directly quoted, I have chosen to leave these terms in place. While it is not my intention to perpetuate the use of these terms, I also do not want to gloss over the racialized colonial violence at play here. 2 Reindeer in Alaska were initially administered through Missionary stations whose missionaries often doubled as BOE officials and/or teachers. Domesticated reindeer are not indigenous to Alaska, but caribou are. 3 Head Herders of Seward Penninsula to W.T. Lopp, May 1 1917, File “Sale [words missing] to white men, 1914-1928, RG 75, Bureau of Indian Affairs, Office of Indian Affairs, Division of Forestry and Grazing, Alaska Reindeer Service, Reindeer Program Correspondence, 1914-1945, Box 1, National Archives and Records Administration, Pacific Branch. 75

to” Alaska Natives.4 The two Mission Reindeer stations, located in northwestern Alaska, had sold their deer just three years after a prominent Sámi reindeer herder Alfred Nilima had sold his large herd of 1200 deer to the Lomen Corporation. The Lomen Corporation was owned and operated by Karl Lomen, the white son of Norwegian immigrants who had come to Nome in search of his fortune in the gold rush. Nilima had arrived in Alaska two years prior to Lomen in 1898 as part of a federal project to bring reindeer to Alaska.

After much success at reindeer herding, Nilima sought to dispense of his herd entirely when his contract with the United States government expired.5 With the sale of his deer, especially female deer, to white herders, Nilima had started a trend that saw thousands of deer transferred to white corporate and individual herders, drawing intense protest from

Alaska Natives for the next two decades.

In this chapter, I analyze the reindeer industry in Alaska and argue that at the center of the conflict over the rights to deer ownership were fundamental tensions over the relationship of Alaska Natives to the federal government. Stemming from the 1872 decision of the Commissioner of Indian Affairs Francis Walker and codified in the 1884

Organic Act, the Bureau of Education (BOE) was responsible for the administration of

Alaska Native affairs rather than the Bureau of Indian Affairs (BIA). Furthermore, BOE agents and teachers were appointed from the ranks of various missionary operations that had established themselves (or were seeking to establish themselves) among Alaska

Native communities. Perhaps the most well known of these figures in Alaska was the

4 W.T. Lopp to Head Herders, October 11, 1917, File “Sale [words missing] to white men, 1914-1928, RG 75, Bureau of Indian Affairs, Office of Indian Affairs, Division of Forestry and Grazing, Alaska Reindeer Service, Reindeer Program Correspondence, 1914-1945, Box 1, National Archives and Records Administration, Pacific Branch. 5 See Roxanne Willis, “A New Game in the North: Alaska Native Reindeer Herding, 1890-1940,” Western Historical Quarterly, no. 37 (Autumn 2006): 277-301 for an overview of the reindeer herding business in Alaska. 76

Presbyterian minister, Sheldon Jackson. Known for the establishment of the Sitka

Industrial Training School in southeast Alaska, Jackson’s second claim to fame was the introduction of domestic reindeer herding to Alaska. In doing so, he set in motion a chain of events that would draw questions of the legal status of Alaska Natives into sharp focus.

Jackson had been an important lobbyist for the passage of the 1884 Organic Act, which had charged the BOE (rather than the BIA) with the responsibility of constructing, staffing, and administering schools for Alaska Natives. The bill also addressed Native land ownership, if only to determine not to make a determination as to the relationship of

Alaska Natives to the federal government and their rights in their land. In crafting and approving the 1884 Organic Act, Congress intentionally declined to recognize Alaska

Native land rights on the grounds, as one Senator stated, no one knew if “they have any rights at all.”6 Rather, they included a clause that protected Alaska Natives in the “use and occupation” of their lands until Congress could enact a more permanent solution.

Along with the ambiguous language in the1867 Treaty of Cession, this set the stage for the development of settler imperial legal tensions in the minds of territorial and federal officials over Alaska Native land ownership and the legal relationship of Alaska Natives to the federal government. Subsequent policies and programs aimed at Alaska Native affairs perpetuated the ambiguities of the 1884 Organic Act, allowing the continued appropriation of Native land and resources on account that current legislation had made no determination as to the nature of the relationship of Alaska Natives to the federal government.

After passage of the Organic Act, Jackson positioned himself for and was appointed to the position of Commissioner of Education in Alaska in 1885 and for the

6 Congressional Record, House, 48th Congress., 1st. Sess. January 21 1884. 77

following 12 years drew salaries from the federal government and from the Presbyterian

Board of Home Missions.7 In settler imperial Alaska the murky relationship between federal and private church interests only served to deepen legal tensions. It was in his capacity as a federal appointee for the BOE that Jackson conceived of and executed a scheme to import and cultivate domesticated reindeer for the benefit of Alaska Native communities. Jackson imagined that Alaska Natives could herd deer for food and clothing, however within a few short years he reimagined the subsistence oriented assimilative nature of reindeer husbandry as potentially developing into a large-scale commercial industry in which reindeer meet products could be marketed across the

United States. As missionaries/BOE agents worked toward this vision, secular commercial interests also sought inroads into the reindeer industry.

As non-Natives encroached on Native reindeer economies, protests from Native herding communities forced the federal government to make a determination as to who had rights to deer ownership and on what grounds. After a lukewarm, and sometimes hostile, reception to the introduction of reindeer, Yup’ik communities in western Alaska had integrated reindeer herding into their economies and social class systems.8 Alaska

Natives used the reindeer industry as a way to accumulate and transfer wealth, purchase goods, facilitate mobility, and to sustain familial and community relationships and they fiercely protested non-Native authority over or encroachment on a program to which they had exclusive rights as indigenous people. Native herders contended that the original intent of the reindeer-herding program had been created for them as Native people and

7 Frank C. Churchill, Reports on the Condition of Educational and School Service and the Management of Reindeer Service in the District of Alaska, (Washington: GPO, 1906) 12-3. 8 Dean F. Olson, Alaska Reindeer Herdsmen: A Study of Native Management in Transition (University of Alaska Fairbanks: Institute of Social, Economic, and Government Research, 1969). 78

they sought to have that distinct status codified in law through the exclusion of non-

Natives from reindeer ownership. By protesting for exclusive rights to reindeer herding as Native people, Alaska Natives forced a reckoning of their legal relationship to the federal government and made important claims to their rights to deer and the land required to herd them.

In forcing this reckoning, Alaska Natives also made important challenges to a number of underlying concepts to federal Indian law. As Congress and federal officials debated over whether non-Natives could be excluded from the reindeer herding economy, conceptualizations of “wardship” became central to these contests. “Wardship,” as articulated by Chief Justice Marshall in Cherokee Nation v. Georgia, had become entwined with non-Native ideas about Native sovereignty and the nation-to-nation relationship of Indian tribes with the United States. In Cherokee Nation, Marshall had designated American Indian nations as “domestic dependent nations” that shared a relationship with the U.S. that “resembles that of a ward to his guardian.”9 In tying sovereignty and nationhood to dependency and wardship, Marshall laid the groundwork for the trust relationship while also providing the means by which the federal government could perpetually interfere with Native sovereignty. This became fundamental to the contests over the reindeer industry, as Congressmen and federal officials mused as to whether or not they could exclude white herders from deer ownership on account that the reindeer program was intended for Native people only. Was it an Indian policy? And if so, had Alaska Natives, by accepting reindeer that had been purchased by the federal government (federal appropriations for deer purchases began in 1894 but remained under the BOE), become wards of the state in the same fashion that the federal government

9 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). 79

considered Indians of the continent “wards?” Furthermore, if that was indeed the case, could Alaska Natives make the same claims to nation-to-nation relationships? Native herders, argued that in claiming exclusive rights to deer as indigenous Alaskans they were not wards, and they protested attempts by the federal government to assume ownership or control over the industry. Deer herding, to them, was simply what they were owed for the decades of resource depletion and economic strain caused by white encroachment on Native land. In the struggle for deer, Alaska Natives made bold claims to economic self-determination and sovereignty.

Discussions about land were eerily missing from debates over reindeer ownership, further revealing the program’s settler imperial nature. As described in the introduction, settler imperial ambiguities served to disconnect land and sovereignty from debates over the legal status of Alaska Natives. Despite the initial lack of BIA involvement in Alaska

Native affairs, the reindeer industry in Alaska quickly came to resemble allotment policy, implemented through the General Allotment Act of 1887, which had allowed the

President of the United States to divide tribal landholdings and distribute parcels of land among tribal members. The justification behind the Dawes Act was to encourage assimilation through the “civilizing” effects of individual land ownership and participation in the economy of settler society while making Indian land available to non-

Indians. The reindeer industry sought to achieve similar goals through the distribution of reindeer, and Presbyterian Minister Sheldon Jackson, imagined that importing reindeer to

Alaska would both provide Alaska Natives with a means of subsistence and facilitate individual property ownership and economic engagement in settler society. The reindeer industry also embodied paternalistic trust initiatives similar to allotment, namely a

prohibition against the sale of deer by Alaska Native herders (especially female deer) to whites.10 While allotment policy in the contiguous states was fundamentally grounded in land and the implicit recognition of Native land ownership and sovereignty (even though the policy was aimed at dissolving them) the reindeer program in Alaska obscured Native land ownership land altogether, instead using reindeer as a surrogate.

These tensions deepened as Jackson and white corporate interests sought to expand the reindeer program from subsistence objectives into a large-scale commercial industry. While pursuing these objectives, the missionaries/BOE agents and independent white corporations (the Lomens) controlled or owned the majority of deer, and Alaska

Natives were relegated to positions in which they would herd deer for these larger non-

Native interests. This organization of the industry relegated Alaska Natives to the status of laborers on the land that they owned. In this way, while land was absent from discussions of the relationship of Alaska Natives to the reindeer program and to the federal government, the program was inherently about land rights; reindeer husbandry requires vast swaths of land and the contests over control of the reindeer program was consequently contests over land itself. However, as long as Jackson, Lomen, and others could maintain uncertainty over the status of Alaska Natives and their relationship to the federal government, the reindeer program would allow for continued non-Native exploitation of land and resources without reckoning with Native land rights. Native activism increased in the first decades of the twentieth century, and Native herders eventually won passage of legislation that had important implications for the relationship of Alaska Natives to the federal government. The 1937 Reindeer Act expelled all non-

10 David Chang, “Enclosures of Land and Sovereignty: The Allotment of American Indian Lands,” Radical History Review 2011, No. 109, (Winter 2011): 108-119. 81

Native herders from the program, and the federal government purchased all non-Native owned deer, holding them in trust for Alaska Natives.

Lastly, the reindeer industry also speaks to territorial Alaska as a settler imperial space with implications for national and international relations and politics. Domesticated reindeer are not indigenous to Alaska and reindeer herding had never been attempted there. In the process of securing and transporting herds and experienced herders to instruct Alaska Natives in the trade, the reindeer industry drew Alaska Natives, reindeer officials, and the federal government into utterly new and complex relationships with indigenous Siberian Chukchi herders and Scandinavian Sámi peoples. Like Alaska

Natives, Chukchi and Sámi herders shaped the course of the reindeer industry in ways territorial and federal officials could not anticipate. Likewise, the international scope of the project had important implications for settler colonial policy and emergent conceptualizations about race, settlement, and citizenship at the edges of empire. In addition to tracing Alaska Native legal status and struggles for economic sovereignty in reindeer herding, this chapter also demonstrates how indigenous people from outside the

U.S. or its territories became embedded within the transnational reindeer circuits that the project engendered. While the reindeer project was settler imperial in nature, it was carried out across and in many ways beholden to Native controlled economic and political spaces. As Jackson and his reindeer agents would discover, Chukchi and Sámi herders would employ the reindeer industry in pursuit of their own objectives. Alaska and

Scandanavian historians and anthropologists alike have documented the Sámi experience in Alaska.11

11 For accounts of Sámi experience as herders in Alaska, see Aage Solbakk and Trygve Solbakk (eds.), Śami Riendeer Herders in Alaska: Letters From America 1901-1937 (Authors Publisher); Ornulv Vorren, 82

This previous scholarship has not examined these Sámi immigrant herders in the context of U.S. imperialism and the ways in which the use of Sámi herders in Alaska strained national policies and expectations of immigration, settlement, and race. In this way, the reindeer project constituted an important crucible of settler imperial relations.

Also like Alaska Native herders, Sami herders who migrated from Norway carved out spaces for themselves within territorial Alaska. Thus, we should understand Sámi experience in the Alaska reindeer industry as one of tension between the coercive power of settler colonial nation states and the ability of indigenous people to leverage these circuits of empire toward their own objectives in their daily lives. For example, many

Sámi negotiated naturalization as U.S citizens, and once in Alaska after the expiration of their government contracts, undertook a variety of vocations. Some remained in the reindeer industry, others relocated to Washington state, and some pursued their fortunes in Alaska prospecting for gold. In fact, Sámi immigrants were responsible for the discovery of major claims, and many became extremely wealthy, prompting outrage and backlash from neighboring white prospectors who challenged the validity of the claims on the basis of race and citizenship status. White miners argued that the Sámi were of

Asian origin and therefore not eligible for citizenship and property ownership. Thus, the reindeer industry was not only an arena in which Alaska Natives negotiated their relationship to the federal government, but it also reflected the importance of territories in debates about U.S. citizenship, migration, labor, and settlement that persisted well into the twentieth century.

Saami, Reindeer and Gold in Alaska: The Emigration of Saami from Norway to Alaska (Long Grove: Waveland Press, 1994). 83

I trace these developments in the reindeer industry in four parts: first I examine the beginnings of the reindeer industry in Alaska and how the project itself engaged

Alaska Native, Siberian Chukchi, and Sámi interests while establishing tension in the relationship of Alaska Natives to the federal government. Second, I examine the response of Alaska Natives to white corporate encroachment in the reindeer industry. Third I examine how these early contests culminated in the 1937 Reindeer Act and the implications the legislation had for Native citizenship and economic sovereignty. And finally, I revisit the importation of reindeer from Norway and the immigration of Sámi herders to demonstrate how the reindeer project strained and complicated ongoing debates about race, settlement, and citizenship in settler imperial Alaska.

Bringing Reindeer to Alaska: The Space Between Indigenous Interests and U.S. Expectations On November 12, 1890, Presbyterian Missionary Sheldon Jackson wrote to the

U.S. Commissioner of Education W.T. Harris in order to call to his attention the need for legislation to address “the starving condition of the Eskimo on the Arctic coast of

Alaska.”12 He wrote that “from time immemorial,” Alaska Natives had “lived upon the whale, the walrus, and the seal of their coasts, the fish and aquatic birds of their rivers, and the caribou (…) of their vast inland plains.”13 While the supply of these resources had been abundant, Jackson lamented that American whalers, ivory hunters, fur seal traders, and commercial fisheries had come to Alaska and, over the last several decades, severely depleted these precious resources.14 He urged the Commissioner to see that

Congress act “at once to afford relief.” Jackson, however, had a particular kind of relief

12 Sheldon Jackson, Preliminary Report of the General Agent of Education for Alaska to the Commissioner of Education (Washington D.C.: Government Printing Office, 1891), 4. 13 Interestingly, Jackson uses a phrase commonly employed by Native people as they establish their inherent rights to their land. 14 Sheldon Jackson, Preliminary Report of the General Agent of Education for Alaska to the Commissioner of Education (Washington D.C.: Government Printing Office, 1891), 4. 84

in mind for Alaska Natives. He argued that while “relief can, of course, be afforded by

Congress voting an appropriation to feed them, as it has so many of the North American

Indians,” doing so would only serve to “degrade and pauperize” them. There was, he contended, “a better, cheaper, more practical, and more humane way, and that is to introduce into Northern Alaska the domesticated reindeer of Siberia” and train Alaska

Natives “in their management, care, and propagation.”15

Jackson’s pleas to Congress and the Commissioner of Education reveal the ways in which the Bureau of Indian Affairs’ refusal to assume jurisdiction over Alaska Native affairs nearly twenty years prior had begun to manifest itself in both policy and practice on the ground in Alaska. His justification for federal intervention in the form of supporting the reindeer industry rested on the depletion of resources by outside non-

Native commercial interests. Rather than recognizing a relationship with Alaska Natives based on nation-to-nation negotiations, the perceived “non-Indian” status of Alaska

Natives stemming from alternate framings of the territory as a chapter in U.S. westward expansion or as an overseas colony engendered a solution that intended to “alleviate” the economic stress in Native communities impacted by the depletion of resources, but do so without addressing questions of land ownership and sovereignty that might disrupt

American commercial economies in the territory. Furthermore, by arguing that he didn’t want to “pauperize” or “degrade” Alaska Natives, Jackson laid a crucial foundation for the relationship of Alaska Natives to the federal government based in conceptualizations of “wardship” status. Alaska Natives had not been identified or categorized as wards of the state because of their designation as distinct from American Indians, treaties had not been signed with them, and Indian reservations did not exist in Alaska as they did in the

15 Ibid., 6 85

contiguous states. Therefore, the trust relationship was imagined not to apply. While

Congress, through 1884 Organic Act, had arranged for schools for Native children, they declined appropriations for Jackson to purchase reindeer, likely on account of these distinctions.

Without government support for his reindeer scheme Jackson undertook a public campaign to secure private donations for the purchase of Siberian reindeer as the beginnings of the Alaska reindeer project. In 1891, with funds from wealthy elite donors, he embarked upon his first voyage to Siberia to “establish good relations” with the

Chukchi herders and to arrange for the purchase of deer the following year. To determine whether or not the reindeer could sustain the voyage to Alaska, 16 deer were purchased and transported back 1000 miles at sea. Upon the successful completion of the journey, with cargo alive and well, Jackson set in motion plans for the purchase of nearly 200 deer to become the first official herd of reindeer in Alaska at the new Teller Reindeer Station at Pt. Clarence on the Seward Peninsula in northwest Alaska.16 A year later, Captain

Healy (captain of the Revenue Cutter Service vessel that transported deer) returned to find that a group of Alaska Natives had murdered a BOE teacher/missionary at a nearby village “partially over his enthusiasm for the presence of the reindeer.”17 The rest of the village, however, had punished the offenders and deer quickly became an important element in the Native economy, which Jackson imagined would benefit from the introduction of reindeer to use on a subsistence basis for food and clothing.

Despite the appearance that Jackson’s reindeer scheme might be successful, the purchase and transport of deer was not quite as simple as Jackson had hoped, and his

16 Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1893), 6-8. 17 Willis “A New Game in the North.” 86

journals contain ample evidence demonstrating that while Jackson himself may have never admitted it, in Siberia, he was beholden to Chukchi social, political, and economic systems, expectations, and protocol. He complained constantly about the difficulty in convincing Siberian herders to part with their deer, and once he secured a promise to sell, he lamented the extended amount of time it took to negotiate the terms and receive deer.

He complained “in Texas such a sale [of cattle] would be consummated in a few minutes or hours. But in Siberia it takes both time and patience.” Any attempt to hurry the negotiations or to bypass the protocol involved in the transfer of deer would result in a refusal to sell. He was likewise beholden to the use of interpreters and guides, and he wrote that the Chukchi were suspicious of his intentions and “can not understand what we want of the reindeer.”18

While Jackson attributes these difficulties to the “superstitious” nature of the

Siberian Chukchi, he does muse that perhaps there is some “business selfishness” at play.

The Chukchi had been trading reindeer hides with Alaska Natives across the Bering Strait in exchange for oil (seal likely) for generations, and the acquisition of reindeer by Alaska

Natives could disrupt the benefits derived from this trade. Jackson considered these economic reasons as secondary, though what he undoubtedly misunderstood was that he was intruding upon long-standing economic systems and relationships in which the ownership, sale, and trading of deer was a primary means of accumulating and transferring wealth and sustaining social and political relationships among the Chukchi themselves and neighboring indigenous Nations. Jackson imagined that his arrival “on a government vessel” had demonstrated authority and established trust. However, the

18 Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1893), 8-9. 87

reality is much more complicated. He writes that he routinely sustained intense questioning of his motives and that at the end of the day despite his best efforts, he may only secure 20 deer from one herder, only 2 from another, and none from most others.

Jackson’s purchase of deer was likely little more than an issue of expediency for those herders who agreed to part with a few deer in exchange for other trade goods. In the end,

Jackson was never able to secure large numbers of deer from Siberia.19

Jackson’s troubles continued once he returned to Alaska as the Siberian herders who accompanied him back to the territory continued to assert their autonomy and pursue their own objectives rather than conform to Jackson’s expectations for the reindeer herding industry. By the fall of 1893 and into the winter of 1894, Jackson’s

Superintendent W.T. Lopp had become so exasperated with three of his Siberian herders that he “wished them back to Siberia.”20 The reindeer agents complained that the three herders, Anker, Dantin, and Nootadlgoot, were “obstinate,” “conceited,” and

“insubordinate.” Jackson’s complaints that the three took deer for slaughter “on the sly when they were out herding” suggests that rather than insubordination, Jackson was merely unable to successfully disrupt Siberian herding practices, revealing his lack of authority and control over the reindeer operations in spite of his best efforts and the image he portrays in his annual reports to the Commissioner of Education. Thus, the reindeer industry reveals that while Jackson’s position with the federal government may have reinforced his understanding of responsibility to bring “civilization” to Native people in Alaska, Jackson was operating within a political geography controlled by indigenous people, communities, and Nations. In this context, and as I’ll discuss more

19 Ibid., 9. 20 Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1894), 10. 88

below, Alaska Native and Siberian reindeer herders entertained Jackson’s scheme but only to the extent to which it suited them. As Jackson and his successors would discover, the reindeer industry would continue to be an important arena for contests over indigenous political and economic sovereignty in Alaska.

The difficulties Jackson encountered with Siberian herders is what prompted him to look elsewhere for supplies of deer and experienced herders, and once again the reindeer scheme drew Alaska Natives and the territory itself into complex relationships that stretched across the borders of settler colonial nation states, and mobilized fierce contests over race, citizenship, and nation. After the herd from Siberia successfully survived its first winter at Teller Reindeer Station, Jackson “at once set about making plans to secure herders from [Scandinavia].” Like before, Congress provided no federal money for this undertaking and Jackson was forced to rely on “private benefaction of friends of the enterprise,” from whom he collected $1000. With this he dispatched his new Reindeer Superintendent, William A. Kjellmann to Norway to entice Sámi herders to emigrate to Alaska with their deer to teach the Alaska Natives the business of reindeer herding.

Jackson had come into business with Kjellmann when the latter responded to the advertisements Jackson had placed in Scandinavian newspapers that were published in the United States seeking assistance with procuring Sámi herders. Kjellmann was himself a Norwegian Finn who spoke the Sámi language, and he was later suspected by the U.S. government of utilizing his position as Jackson’s newly recruited Superintendent and liaison to Sámi herders to advance a “colonization scheme” by which Sámi could secure citizenship in the U.S. Kjellman reported that the Sámi drove a hard bargain and that the

negotiations took weeks in addition to even more time to round up the nearly 600 deer that Jackson wished to transport. First, convincing Sámi to leave their homes was more difficult than Jackson anticipated and demonstrates the degree to which Jackson and

Kjellman were beholden to Sámi demands regarding the terms of their contracts. Writing in March of 1894 from Norway, Kjellmann related to Jackson that he had been questioned by the local mayor as to the nature of his plans, “what the Lapps were wanted for, their salary, and the terms of their return.” Even after the mayor was satisfied that they would be treated well, the five families of Sámi herders that Kjellmann had convinced to come to Alaska demanded a guarantee of their salary from the U.S. federal government. Kjellmann wired Jackson of their demands, and the Acting Commissioner of

Education, Lovick Pierce, responded that “Sheldon Jackson, Government agent, Alaska, guarantees salary of Lapp families.” However the families responded that they were not satisfied with Jackson’s guarantee. Instead they demanded “such direct from the United

States Government.”21 Only by assuring the Sámi that Jackson was a high-ranking federal official could Kjellmann secure their willingness to travel to Alaska.

Regardless of the nature of the negotiations and Kjellman’s designs, it might be worthwhile to speculate that the five families of Sámi who agreed to leave for Alaska may well have done so in an effort to secure a permanent residency in the territory despite the fact that their contracts guaranteed them free passage home should they decide to return after their terms. Other scholars have noted that northern Norway grazing lands suffered from overcrowding, and Russia, Norway, Finland, and Sweden were closing their borders, preventing herders from enjoying the necessary mobility for their

21 William Kjellmann to Sheldon Jackson March 28, 1894 and Consulate to Lovick Pierce, April 6, 1894 in Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1894), 78. 90

industry.22 Furthermore, Roxanne Willis asserts in her article “A New Game in the North:

Native Reindeer Herding, 1890-1940,” that the Kjellmann perhaps sweetened the deal when he informed the Sámi that in the United States, they would be treated as white.23

Nevertheless, five Sámi herders, Johan Speinsen Tornensis, Samuel Johnsen Kemi,

Mathis Aslaksen Eira, Mikkel Josefsen Nakkila, Per Aslaksen Rist, and Frederick Larsen, three of whom in the company of their wives and a handful of children all under the age of four, emigrated to Alaska. They arrived at Teller Reindeer Station on the Seward

Peninsula in Alaska that July.24

Sheldon Jackson structured his vision for the reindeer program in Alaska on a traditional apprenticeship model, in which Siberian Chukchi and later Sámi herders would instruct Alaska Natives in reindeer husbandry. The deer would be under the supervision of various BOE teachers/missionaries at their respective locations. After a period of one year, Alaska Native apprentices would be evaluated for suitability to own their own deer and establish their own herds. At this time and with a satisfactory evaluation, an apprentice may “have two deer for himself; at the end of the second year 5 additional deer, and at the end of the third year and each succeeding year that he remains in the herd, 10 deer.”25 Alaska Native herders were not permitted to sell these deer without written permission of the superintendent and under no circumstances were female deer to be sold to non-Natives.

Following Jackson’s repeated requests for funding, Congress allocated $6,000 for the purchase of reindeer to begin in 1894 in addition to supplying the needs of the

22 David C. Plaskett, “A Lapp Reindeer Herding Colony in Northwest Alaska,” Master’s Thesis, Brown University, 1984. 23 Willis, “A New Game in the North.” 24 Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1894), 12. 25 Ibid., quoted from Senate document 92, 63. 91

missions/BOE schools in their educational objectives. To supply the apprentices during their apprenticeship, the head reindeer agent at each mission opened an account with each of the apprentices “and his family,” charging against “him all garments, bedding, ammunition, etc.”26 These materials were on loan from the federal government as part of the Bureau of Education’s educational mission in Alaska. With the newly appropriated funds, Jackson sought to distribute 100 head of deer to each of the following stations: the

Congregationalists at Cape Prince of Wales, the Swedish Evangelical Church at Golovin

Bay, the Roman Catholic Church on the Yukon River, and the Presbyterian Church at St.

Lawrence Island.27

While the initial reception by Alaska Natives of reindeer herding, along with Siberian and Sámi newcomers had been lukewarm at best, and hostile at worst, by 1894 and 1895 the reindeer industry seemed to be catching on, though not in ways that Jackson or his reindeer agents anticipated.28 While apprenticed Alaska Natives saw some utility in reindeer herding, they hardly abandoned their long-standing cultural and economic practices. Additionally, the restrictions placed on Native herders may have been discouraging, causing few to express the kind of interest Jackson had anticipated. Unlike

Alaska Natives who were prohibited from selling deer, Sámi herders were permitted to buy and sell their deer as they saw fit, and over time many had accumulated large herds in comparison to those that Alaska Natives could accumulate under apprenticeship.29 The

26 Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1894), 62. 27 Sheldon Jackson, Report on the Introduction of Domesticated Reindeer to Alaska (Washington D.C.: Government Printing Office, 1894), 18. Because the federal government had utilized missionaries as BOE agents, the denominations of missionaries were the entities delegated to manage the reindeer herding programs at the villages in which the missions were based. 28 See Willis, “A New Game in the North” for initial reception of reindeer herding. 29 Ibid. 92

discrepancies in policy may have provided a lack of incentive for Alaska Natives to take up herding full time.

Additionally, in the 1894 Report on the Introduction of Domestic Reindeer to Alaska,

Jackson related that in spite of the hopes of the reindeer agents and missionaries that reindeer herding would instill non-Native labor and work “habits” among Native communities, therefore fulfilling their “civilizing” objectives, Native herders “have not been without their amusements.” He reported that they had “built a large dance house and feasted and danced half of November and all of December” while showing no interest in the Thanksgiving Day and Christmas celebrations the missions attempted to put on for them.30 Whether out of disdain for the restrictive apprenticeships or a keen sense of economic opportunity—or both—apprentices regularly demonstrated that rather than fulfilling Jackson’s and the BOE’s expectations, reindeer herding would be incorporated into Native communities on Native terms and not the other way around.

Alaska Natives further exasperated Jackson’s plans by adapting the apprentice program to their own needs, which supplemented rather than replaced their economies. In

1894, Superintendent Kjellmann reported the presence of thirteen apprentices at the

Teller Reindeer Station: Moses, Martin Jacobson, Tatpau, Akweet koon, Soo wa wha sie,

Antisarlook, Kum muk, Sekeog look, Oo Kwood let, To oo tuk, Ohlook, Alektoona, and

Wok sock. Interestingly, Kjellmann identifies Moses as “Indian,” and the rest as Iñupiaq or Yup’ik, indicating that Alaska Natives from different regions of the territory possibly sought out work in the reindeer business. Moses may have been Athatbascan and had perhaps traveled anywhere from a few hundred to over one thousand miles to herd

30 Exec. Doc. 92, 53rd Cong. 3rd Sess., Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1894),76. 93

reindeer.31 Nevertheless, Kjellmann laments the following year that “we have only nine of the above thirteen, four of them having left us.”32 Kjellman indicates that two of the four had been dismissed because they had no true desire for herding, but had come to the reindeer station with the intent of staying on for only one year. He complained that afterward, Oo kwood let and Soo wa wha sie “having received a good living and been supplied with good warm clothes and earned a couple of animals,” they returned “back to their homes, warm, well fed, and with a little fortune (…) and in this manner live another year without work.”33 He concluded, “from their standpoint, this may be regarded as a successful enterprise.”34 And indeed, it likely was. Kjellman’s complaint reveals the ways in which Alaska Natives appropriated elements of the reindeer program to suit their own needs—likely taking the money and the few deer they had earned back to their communities therefore supplementing, rather than replacing, their regular economic pursuits.

There were other unanticipated and contradictory consequences of the herding program as well, revealing the tensions in ideas about Indian policy as they were applied in Alaska. While Jackson and his counterparts imagined their work in Alaska as a

“civilizing” mission in which the business of reindeer herding would instill capitalistic values through small scale production (not unlike allotment), the reindeer report of 1895 admits that “any person who desires to become the owner of reindeer must first become a nomad,” and that accustoming the apprentices to this lifestyle took a fair amount of

31 Or Jackson could simply be wrong. 32 Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1895), senate document 111, page 67. 33 Ibid. 67. 34 Ibid. 67. 94

effort.35 Federal officials had spent much effort enacting policies in the contiguous states aimed at curbing what they perceived as “nomadism” and had begun promoting assimilation and individual property ownership through allotment. The nomadic requirement for reindeer herding stands in stark contradiction to these policies and to ideas espoused by these officials that Alaska Natives lacked recognizable systems of property ownership. I contend that this contradiction is an important consequence of the reindeer program’s function of removing Native land ownership from territorial and federal policy toward Alaska Natives. Rather than fixing Native people in “place” through a reservation system or allotments, herding required movement, sometimes over hundreds of miles.

Despite its contradictions in “assimilative” objectives, the “nomadic” lifestyle that reindeer herding required may have also provided important opportunities for Native herders. Apprentices checked in with the reindeer supervisors on the weekend, but it appears that during the week, they were on their own. This may well have provided a fair amount of autonomy, and as Jackson and other mission reindeer agents quickly learned,

Alaska Native apprentices would come to challenge their authority, bringing many aspects of the industry under Native control. Thus, in many ways, the reindeer industry likely provided unique opportunities for Native herders to sustain familial, social, political, and economic relationships and responsibilities in spite of Jackson’s assimilative objectives.36

35 Ibid. 67. 36 See Dean F. Olson, Alaska Reindeer Herdsmen: A Study of Native Management in Transition” (Fairbanks: University of Alaska Fairbanks, 1969). He identifies the ways in which Alaska Natives from the Wales community used the apprenticeship system to maintain customary socio-economic relationships within the village, and apprentices during the 1890s largely came from 10 families that were regarded as particularly wealthy prior to the introduction of reindeer. Also, see William Bauer, We Were All Migrant Workers Here: Work, Community, and Memory on California’s Round Valley Indian Reservation 1850- 95

Struggles for Control over Reindeer Management: Economic Sovereignty and Legal Constructions of Wardship While some Native herders were able to turn reindeer herding into economic opportunity and to incorporate the undertaking into their social structures and the program had grown considerably, by the turn of the century the Missions and a handful of

Sámi herders that had arrived in 1898 still owned the majority of deer. By 1902 there were 6,505 deer in Alaska of which 2,841 belonged to Native herders, 2,176 are “on loan or owned by eight missionary societies, 1,150 are on loan to or owned by five [Sámi] herders, and 338 remain under BOE control.”37 The disproportionate numbers in Native owned deer gave rise to a government investigation in 1905, conducted by the

Department of the Interior Indian Agent, Frank C. Churchill. In sending an Indian Agent, the Interior Department perhaps considered the reindeer program as an “Indian policy” in which its original intent and objectives had been to exclusively serve the Native population, and Churchill’s conclusions reflect this. Churchill accused the missions, in their administration of the reindeer industry, of being grossly negligent if not outright fraudulent in their handling of deer and their relationships to Native herders. He wrote in his report that it had been a “serious mistake” for the government to accept the

BOE/Jackson’s insistence that “the care of reindeer must be placed in the hands of the missions.” Jackson had in fact articulated in his 1902 report that “a good reindeer herd at the mission station means…the permanence of the mission…a source of revenue [for the

1941 (Chapel Hill: University of North Carolina Press, 2009) for an examination of how wage work not only provided income for Round Valley Indians, but also facilitated opportunities for them to create and sustain community networks. Likewise, Cathleen D. Cahill, in Federal Fathers and Mothers: A Social History of the United States Indian Service, 1869-1933 (Chapel Hill: University of North Carilina Press, 2013) argues that while the Indian Service sought to facilitate assimilation and the disintegration of tribal affiliations and networks, it rather provided opportunities for Native workers in the Service to interact with Native communities and to create and sustain vital networks of communication and mutual assistance in response to U.S. assimilative strategies. 37 Dean F. Olson, Alaska Reindeer Herdsmen: A Study of Native Management in Transition (University of Alaska Fairbanks: Institute of Social, Economic, and Government Research, 1969). 96

mission]…[and] a continuous supply of fresh meat” for “the mission family.” Churchill judged the ulterior motives of the mission families harshly, writing that while he appreciated the “self-sacrificing missionaries and their families” he found himself

“somewhat at a loss for suitable words with which to discuss appropriately such declarations as are quoted above” in which it was clear that the reindeer industry had been contrived into a means to sustain missions, rather than provide for Native communities.38

Churchill also pointed out that while serving as Commissioner of Education in

Alaska, Jackson was also collecting a salary from the Presbyterian Board of Home

Missions up until 1897. Government appropriations for deer had increased nearly every year since the first were made in 1894, totaling $222,500 from 1894-1905 and Churchill expressed palpable displeasure that the funds had largely gone to enriching missionaries and their families. He argued that “close observation indicates the element of self-interest on the part of the missions or those acting in their behalf” and that while the missions had distributed some deer “to some extent,” there were “various reports of the Bureau [that] show very clearly that after these many years the number of natives having deer is not very considerable, while the herds accumulated and now claimed as the property of the missions constitute a very large part of all the reindeer in Alaska.”39

It is here, in the early part of the twentieth century, that the symptoms of the settler imperial tensions embedded in the Treaty of Cession and subsequent court rulings regarding the relationship of Alaska Natives to the federal government are becoming much more visible. The delegation of Alaska Native affairs to the BOE rather than the

38 Frank C. Churchill, Reports on the Condition of Educational and School Service and the Management of Reindeer Service in the District of Alaska, (Washington: GPO, 1906), 35-6. 39 Ibid. 37. 97

BIA sustained these ambiguities by entrenching them in the reindeer program as official policy. Because the federal government maintained uncertainty in the legal status of

Alaska Natives, the missionaries were able to blur the lines between the ad hoc objectives of the program as a quasi “Indian policy” or as a new industry in an open market economy. This blurring of the lines engendered by the legal uncertainty of Alaska

Natives gave rise to yet another instance in which Native land and resources could be readily exploited by whites.

Nevertheless, after the investigation, Jackson resigned and William T. Lopp, who had previously served as Superintendent of the Northwest District replaced him. Lopp formed the U.S. Reindeer Service and reorganized management of the program. Under the new management structure, superintendents under the BOE conducted the distribution and oversight of deer, rather than missionaries/BOE teachers. Under the new program, Native deer ownership increased, and by 1914 Native herders accounted for 66% of ownership of the total 32,828 head of deer existing in Alaska. As the industry continued to expand in the 1920s, Native herders also began asserting an increased level of autonomy over their deer to the consternation of BOE officials. For example, one teacher in Wales complained to Superintendent Dupertuis that the Native herders “trade deer just as they pleased, without reporting to local superintendents and without bill of sale. Hundreds of transactions have been made—never recorded.”40 Furthermore, the local superintendent at Togiak complained bitterly to the General Reindeer Superintendent at Nome that

Native herders, while using deer “locally for hides and meat,” were rather “primarily concerned with fishing in the summer and trapping in the winter and spring.” Instead of

40 Wales teacher to Supt. Dupertuis, June 18 1923, Bureau of Indian Affairs, Juneau Area Office Alaska Reindeer Service Historical Files 1929-1948, “History, General” file, RG 75, NARA Washington Pacific. 98

following the herd round up schedules set by the superintendents, the Native herders flatly informed them that they would participate in round ups in August or sometimes as late as October when the fishing season was over.41

While Native ownership of deer was increasing in the early twentieth century, an important transaction occurred in 1914 that would bring dramatic changes to the industry and force the federal government to determine the exact nature of the reindeer program.

Carl Lomen, founder of the Lomen Corporation, purchased a herd of 1200 deer from

Sámi herder Alfred Nilima. Lomen had originally come to Alaska with his father in 1900 as part of the gold rush where his father soon came to practice law and Carl and his brothers Ralph, Harry, and Alfred opened a photography studio. The family also opened clothing stores, and Carl served for a time as Chief Clerk for the U.S. District Court. It was the purchase of Nilima’s reindeer and the reindeer empire that Carl attempted to build that earned him the name “Reindeer King” of Alaska, and set the stage for heated struggles over race, indigeneity, and the legal status of Alaska Natives in the reindeer industry.42

From the outset, Native herders were forbidden to sell their deer—especially female deer—to non-Natives. However, no such restriction had been placed on Sámi herders and it was through this loophole that Karl Lomen exploded onto the reindeer scene setting off over two decades worth of conflict. District Governor John Strong wrote in his 1917 report that because the reindeer industry was primarily to “assist the natives,’ the deer had been “restricted to them as much as possible.” However, these restrictions had not

41 Kenneth Stevenson to General Reindeer Superintendent, September 21, 1934, Alaska Reindeer Service Decimal Correspondence 052.—052.70A, Handlings and Roundups Correspondence 1934-1935 42 Biographical note on Carl Lomen, University of Washington Libraries, Special Collections, Lomen Bros. Photographs. 99

been able to prevent “the entrance of the white man into the enterprise,” and once Karl

Lomen exhausted his sources of Sámi owned deer, he negotiated “a purchase of about

1,000 deer from herds of the Swedish Evangelical Mission Covenant of America at

Golovin.” It was not until 1916, when the Norwegian Evangelical Lutheran Church at

Teller sold 300 deer to Lomen & Co. under violation of their written contract, that the

Department of Justice attempted to intervene. Governor Strong knew that “the final outcome will be important, since it will affect the status of all deer now held by missionary organizations in Alaska.” 43 Ultimately the Department of Justice investigation determined that nothing illegal had transpired and the Lomen Corporation continued to purchase deer (over 14,000 by 1929) through herders, missions, or as payment for debt in one of their many supply stores or processing facilities. However, what Strong perhaps did not anticipate was the tenacity with which Native herders themselves would pursue legislation excluding all whites from deer ownership and in the process leverage settler imperial ambiguities in carving out a powerful visions of citizenship, sovereignty, and economic self-determination.44

In the twenty years since the first large herd of deer had arrived from Norway, Alaska

Natives had successfully incorporated many elements of this new commodity into their economies. It is in this context that Oquilluk, George Ootenna, John Sinnok, William

Allookeck, and Thomas Tautuk, crafted their petition against white ownership of

43 Report of Governor of Alaska (Washington D.C.: Government Printing Office, 1917), 400. 44 For works on Native struggles for and exercise of economic sovereignty and self-determination see Brian Hosmer, American Indians in the Marketplace: Persistence and Innovation Among the Menominees and Metlakatlans, 1870-1920 (Lawrence: University Press of Kansas, 1999); Brian Hosmer, Colleen O’Neill, Donald L. Fixico, eds., Native Pathways: American Indian Culture and Economic Development in the Twentieth Century (Boulder: University Press of Colorado, 2004); William Bauer, We Were All Like Migrant Workers Here: Community, Work, and Memory on California’s Round Valley Reservation (Chapel Hill: University of North Carolina Press, 2009); Chantal Norrgard, Seasons of Change: Labor, Treaty Rights, and Ojibwe Nationhood (Chapel Hill: University of North Carolina Press, 2014). 100

reindeer. The petition reflects that Native herders understood the reindeer program as designed specifically for them as indigenous people with a distinct relationship with the federal government. In the following years, Native herders invoked this relationship in a variety of ways, ultimately leveraging their status as indigenous Alaskans under the supervision of the Department of the Interior and Bureau of Education in the assertion and exercise of economic sovereignty over their deer. This was a fine line to walk: Native herders had to prevent the acquisition of deer by white men through corporate loopholes.

For this, they called upon federal officials. However, while relying on the federal government in this context, they also had to guard against the encroachment of federal authority and oversight into their communities. As Native herders made increasing calls to federal officials to protect their deer, federal authorities challenged Native exercise of sovereignty over reindeer operations and called into question the exact nature of the reindeer industry, the legal status of Alaska Natives, and whether or not, by accepting deer, Alaska Natives had become wards of the government. Such a status designation would have compromised their claims to ownership and autonomy and threatened their ability to use the deer for their own purposes.

As the Lomen Corporation developed and expanded a rigid monopoly over meat packing plants, cold storage, and transportation, they emerged as a clear threat to Native reindeer economies.45 By 1930, William T. Lopp (A mission teacher who had overseen elements of the reindeer program since the 1890s, and by this time was Chief of the

Alaska Division of the Bureau of Education) and other BOE officials had worked to organize reindeer fairs where they encouraged Native herders to organize their herds into large clubs or associations to better manage their deer. In the early 1900s, official

45 Olson, Alaska Reindeer Herdsman. 101

“Reindeer Companies” were formed. The Companies were beneficial to smaller herders who could own stock in the companies, a practice that facilitated mobility and economic advancement. For the larger herders too, whose status had become tied to deer ownership in the previous decades, the Companies became a vehicle for political and economic objectives.46 It was between these reindeer companies and the Lomen Corporation that the major disputes over deer ownership and access to grazing ranges began to take place.47 Likewise, the BOE had relinquished control over the U.S. Reindeer Service and had transferred responsibility to the territorial governor in 1929, where authority remained in spite of the fact that Secretary of the Interior Wilbur transferred the administration of Alaska Native Affairs to the Bureau of Indian Affairs in 1931. The disassociation of the Reindeer Service from the federal department responsible for implementing Indian policy is revealing in that it speaks to federal ambivalence over the legal status of Alaska Natives. The separation of contests over resources (deer) and land

(grazing rights) from Indian policy and BIA jurisdiction opened up a legal space in which non-Natives could continue to exploit these very resources and make claims to the land needed to sustain them. The federal government, while funneling monetary support for the program through the BOE had perpetuated these uncertainties.

Amidst the shuffling of bureaucracy and Native protests to white ownership of deer— particularly by the Lomens—the federal government established a “Reindeer

Committee,” which held hearings in 1931 in Washington D.C. in an attempt to reconcile these growing issues. At these hearings, testimony swirled around exactly what the

46 Ibid. 24 47 1933-1934 “Report made for Governor Troy.” According to this report, these cooperatives were under the guardianship of the Department of the Interior and under the Direct Supervision of the Governor of Alaska, with field managers, unit managers, and teachers acting in various supervisory roles. 102

federal government’s interest in the reindeer industry was and, by default, what their obligations were to Alaska Natives and the implications that had for their legal status.

The Lomens were accused not only of potentially illegally purchasing deer, but they had encroached on Native land as their herds expanded, pushing Native herders and their herds off and then charging “Native herd owners a grazing fee for the use of the range which they had formerly occupied.”48 Additionally, the Lomens were accused of marking deer to which they were not entitled to their own herds, in effect stealing deer from

Native herdsmen. As Native protests increased, the federal government sought to clarify the nature of the reindeer program and what, exactly, the government’s responsibility was.

Territorial Delegate James Wickersham attended the hearings, and in his testimony he alluded to the state of confusion characterizing reindeer matters during questioning by

Senator Kendrick (D-Wyoming, owner of Kendrick Cattle Company). Kendrick asked whether or not “under the provisions of the law with references to the delivery of the reindeer to the Eskimo that the Government itself had maintained, or retained any interest in these reindeer.”49 Wickersham’s reply reveals the utter confusion surrounding the objectives of the reindeer project and how those objectives would frame the relationship of Alaska Natives with the federal government. Wickersham stated “the matter is so badly mixed up that no attorney can give you any definite answer to your question. It must be taken probably to the courts, certainly to the Attorney General.”50 This “mix up” over federal, territorial, and Native legal relationships concerning the reindeer industry

48 Stern, Eskimos, Reindeer, and Land, 28. 49 Department of the Interior, “Hearings before the Reindeer Committee in Washington D.C.,” (Washington D.C.: GOP, 1931). 50 Ibid. 103

stems directly from the ambiguous legal status of Alaska Natives. While federal officials worked toward sorting out just what the federal government’s “interest” in reindeer was,

Alaska Natives intensified their pursuit of exclusive rights to reindeer as indigenous

Alaskans.

In addition to pushing Native herders out of business, many Native herding communities felt that the Carl Lomen and his Washington political friends had successfully lobbied for good favor from federal officials. When responsibility for the reindeer industry was transferred to the territorial governor, the Department of the

Interior created a federal Reindeer Commission to ensure appropriate administration of the program, and in 1930 they sent two agents to Alaska to assess the reindeer situation.

The Trowbridge-Gillman report, as this investigation came to be called, was extremely favorable to the Lomen Corporation, which eventually led to accusations of collusion.

Nevertheless, the result of their investigation was the removal by the Secretary of the

Interior of B.B. Mozee as the General Superintendent of the Reindeer Service. Mozee had been employed in the reindeer program for years, and had been appointed as the

Superintendent of the Central District prior to his promotion to General Superintendent.

He had been an ally of Native herders and had continuously attempted to stave off Lomen attempts to exploit them in the reindeer business, thus many Native herders protested his removal as purely the product of Lomen lobbying.51 Mozee’s replacement, Lyman

Brewster maintained a conciliatory relationship with the Lomen Corporation, drawing the conflict to a head.

51 See Norman Lee to Anthony Dimond, February 12, 1933, and Emma Willoya to Anthony Dimond, April 4th, 1933, Anthony J. Dimond Papers, Series 3, Box 8, File 75 (University of Fairbanks, Rasmuson Library, Alaska and Polar Regions Collections). 104

As the controversy over who could rightfully own reindeer deepened, the legal status of Alaska Natives became increasingly contentious. After Mozee’s dismissal and the protests that arose in its wake, the government conducted two more investigations of the reindeer industry.52 Dr. W. Carson Ryan Jr., Director of the Division of Education in the

Bureau of Indian Affairs, conducted the first investigation, which was kept confidential.

In his report submitted to the Department of the Interior, he characterized the

Trowbridge-Gillman findings as “seriously defective” and “almost wholly unreliable” due to the “favorable words” used by its authors when they discuss instances of Lomen

“rascality.”53 Ultimately, however, Ryan characterized the problems of deer ownership as a failure on the part of the federal government to determine what its proper role was in the reindeer industry and in Alaska Native affairs. He opened his report with an indictment of this failure to determine concretely what the relationship of the federal government was with regard to Alaska Natives. He asked, “Is the Government engaged in the reindeer enterprise primarily for the economic and social development of the Alaska native [sic], or for the benefit of private commercial interest? (…) To what extent is the

Government’s activity still to be on behalf of the natives?”54

Thus, the ambiguous nature of the relationship of Alaska Natives and the federal government stemming from the BIA’s refusal to recognize them as occupying a similar legal status to American Indians and the subsequent federal ambivalence over the

52 Richard O. Stern, Edward L. Arobio, Larry L. Naylor, and Wayne C. Thomas, “Eskimos, Reindeer, and Land” (Fairbanks: School of Agriculture and Land Resources Management, Agricultural and Forestry Experiment Station, University of Alaska Fairbanks, December 1980). 53 Confidential Report by Dr. W. Carson Ryan Jr. Director, Division of Education , Bureau of Indian Affairs, Department of the Interior, “The Alaska Reindeer Industry” printed in Hearings before a subcommittee of the committee on Indian Affairs United States Senate 74th Congress 2nd Session Pursuant to S. Res. 79 and 308 (70th Cong.), S. Res. 263 and 416 (71d Cong.), S. Res. 323 (72d Cong.), S. Res. 241 (73d. Cong.) and S.Res. 230 (74th Cong.) Part 36 Alaska (Washington D.C.: U.S. Government Printing Office, 1939), 20088. 54 Ibid. 20087. 105

reindeer project in general had produced the current state of chaos with regard to who could legally own reindeer. Ryan referred to the nature of Sheldon Jackson’s original request to Congress for permission to introduce reindeer to Alaska as a creative divergence from Indian policy (specifically Jackson’s reasoning that reindeer would be more effective than appropriations for food etc. as part of the “civilizing” objectives of the program) in the contiguous states and territories. However he concluded that the federal government had not gone far enough in determining exactly what the program should look like in terms of the legal ownership of deer by both whites and Natives. This ambiguity had allowed for a large degree of autonomy among Native herders, but it had also left open the door to exploitation by the Lomens. Ryan recommended, among other things, that the legal question be resolved and that oversight of the Reindeer Service be transferred to the Commissioner of Indian Affairs.55

Native herders continued to protest behavior by the Lomen Corporation throughout the early 1930s, revealing the sharpening division of labor in which Native herders were increasingly relegated to wage earning herders for the Lomen Corporation, or subjected to abusive range fees for the use of their own land.56 For example, in May, 1933, John

Weanna, Vice President of the Teller Native Reindeer Co. wrote angrily to C.C. Moore, the Commissioner of the United States Land office in Washington D.C., protesting a joint application for a grazing lease with the Lomens followed by a letter to Interior Secretary

Harold Ickes excoriating the federal government for allowing the Lomens to monopolize reindeer ownership and the means of production (cold storage, slaughterhouses, etc.). He vehemently wrote that “we are determined to protect our rights and property from any

55 Ibid. 20089. 56 Willis, “A New Game in the North” 106

and all exploiters, it is our property, we paid for it with good cold cash or its equivalent in labor…We cannot be compelled to care for the Lomens property and we will not do it to save them, after they have been so unjust to us and ours.”57

In addition to Weanna’s adamant refusal to labor for the benefit of the Lomens, he made extensive pleas to Ickes imploring him to confiscate all the female deer currently held by whites. In doing so, he evoked expectations that Ickes no doubt would have understood as inherent to the relationship of a “ward to his guardian.” Weanna wrote that it was “a great Crime for a Government to instill the ideas of justice in a race of people, subjects of their power, wards of themselves and then allow that sence [sic] of justice to be betrayed as it has in this instance…after promising these people so often, that this one industry was for them alone for all time.”58 In closing, he urged the government “for the cause of a whole race of people, who are our GOVERNMENT’S WARDS, and are praying for releif [sic] from this inhuman MONSTER, THE LOMEN COMPANY.”59

While it is unlikely that Weanna considered himself a “ward” in the same sense that federal officials had constructed the legal term in Indian policy, he understood that the federal government was obliged to Native people and Native communities, and his letter demonstrates his attempt to invoke those obligations on behalf of himself and the Native herding community.

Also that year, Emma Willoya wrote an extensive letter to Territorial Delegate

Anthony Dimond, detailing the inequality plaguing the Native industry. She wrote that

“all over there is trouble,” and if the Native reindeer corporations could “only have a

57 John Weanna to C.C. Moore, May 11, 1933, Anthony J. Dimond Papers, Series 3, Box 8, File 75 (University of Fairbanks, Rasmuson Library, Alaska and Polar Regions Collections). 58 Ibid. 59 Ibid. 107

storage plant…we could be taught to handle the Reindeer Business which would from now on be a help to the Natives through the generations.” She also complained bitterly about the Lomens, who were “getting the better [of the Reindeer Service], forcing their plans on us.” She concluded that to be forced to do the herding for the Lomens while getting “nothing for it” was “the worst thing that can happen to us.”60

A second report issued in January of 1934, conducted by Special Agent Roy Nash attempted to address the concerns of the Ryan report, and in doing so sought to establish a concrete designation of Alaska Native legal status in relation to the federal government’s involvement in the reindeer industry. He argued that the Lomen

Corporation (which had recently changed its name to the Northwestern Livestock Co.)

“has been invading ranges long occupied by government wards” and “taking restricted

Indian property to Eskimos’ share of the costs.”61 He concluded that the original intent had been for exclusive Alaska Native involvement in the reindeer program and that

Alaska Natives, “in receiving such restricted property became, by virtue of that fact, ward-Indians.” He recommended immediate separation of Native and white owned herds and a recovery of the “restricted Indian property, by court action if necessary.” 62

Importantly, these reports, accompanied by continuous Native lobbying, coincided with a general shift in Indian policy away from allotment and assimilation toward an affirmation of Indian collective land rights and self-government. This shift was embodied in the 1934 Indian Reorganization Act (IRA), and while the legislation wasn’t immediately applied to Alaska Natives, the reports stemming from the Ryan and Nash

60 Emma Willoya to Anthony Dimond, April 4th, 1933, Anthony J. Dimond Papers, Series 3, Box 8, File 75 (University of Fairbanks, Rasmuson Library, Alaska and Polar Regions Collections). 61 Roy Nash, “The Alaska Reindeer Situation in 1933” January 11, 1934. 62 Ibid. 108

investigations perhaps reflect their understanding of the general objectives in which it was conceived. Both agents argued that the original intent of the reindeer operation had been to provide a means by which Alaska Natives could participate in collective economic activity. They concluded that federal government had a responsibility to maintain the Native character of the reindeer industry, perhaps to facilitate some level of economic self-determination in spite of federal and territorial oversight. Whatever their intentions in the context of federal policy, neither report addressed issues of Native land ownership.

Nevertheless, Alaska Native herders had their own ideas about how to assert sovereignty over their reindeer, to the consternation of reindeer agents, and they continued to do so despite the ensuing policy confusion at the territorial and federal levels. Importantly, they pushed back against attempts to restrict their autonomy while simultaneously attempting to safeguard their sole interest in the reindeer industry. For example, Lyman Brewster—Mozee’s controversial replacement—complained bitterly to

Territorial Governor Troy that the general confusion in the status of Alaska Natives and their relationship to the government and the reindeer had lead several Native herders “to insist that the deer are owned outright by them, and that their property is in no way restricted.” He continued that “the Reindeer Service has floundered in the darkness as a result of this uncertainty…Our authority in this respect has been questioned so that it has been necessary at times to stand by.”63 At issue in Brewster’s letter were problems of enforcing restrictions regarding “use, alienation, and transfer upon death” of reindeer in

Alaska Native possession. Alaska Natives had, since the inception of the reindeer project,

63 Lyman Brewster to Governor John Troy, January 25, 1934 Anthony J. Dimond Papers, Series 3, Box 8, File 82 (University of Fairbanks, Rasmuson Library, Alaska and Polar Regions Collections). 109

used herding as a means to facilitate their own livelihoods and to fulfill social obligations. Over the years, reindeer had become a rather fungible commodity and Alaska

Natives had generated quite a bit of controversy when they used deer to settle debts or for the payment of goods.64 By the mid 1930s, the threat that the Lomen Corporation posed to Alaska Native economic security and sovereignty gave rise to intensified efforts to assert Native control over the reindeer herding industry.

Native Citizenship and Equal Rights: Discrimination Discourses and the Reindeer Act of 1937 Between 1934 and 1936, conflict over Native and white ownership of reindeer escalated and the stakes for Native herders were high as the Lomen Corporation continued to encroach on Native herds. In September of 1934, William Allockeuk, representing the Allockeuk and Konuk Herds, John Sinnok for the Shishmaref Herd,

Louis Tungwenuk for the Cape Reindeer Company, and Robert Etuktituk for the Teller

Mission Reindeer Company affixed their signatures to yet another lengthy petition for an investigation and consideration “pertaining to our land and legal ownership of reindeer.”65 The ensuing search by lawmakers, territorial and federal officials, and Native herders alike to find a workable solution centered around the legal status of Alaska

Natives and their relationship to the federal government.

The petition itself was incredibly detailed and in addition to making claims for Native ownership of deer, it outlined an extensive web of alleged corruption among the Lomens and the federal officials who sought to gain from their foray in the reindeer industry.

First, the petition situated Alaska Natives as having the legal standing as citizens of the

64 Olson, Alaska Reindeer Herdsman; Willis, “A New Game in the North.” 65 Alaska Press, Juneau, Alaska September 21, 1934 (transcript of petition) RG 75 Bureau of Indian Affairs Alaska Division, Alaska Reindeer Service Decimal Correspondence, Box 1, File 010 1933-1935 Publications and Newspaper Clippings Etc. (National Archives and Records Administration Washington Pacific Branch, Seattle, Washington). 110

United States with the right to make claims on the federal government to protect their deer from being appropriated by whites. They cited the 14th Amendment of the U.S.

Constitution, Article Three of the Treaty of Cession ceding Alaska to the U.S., the 1924

Indian Citizenship Act, and the First Amendment of the U.S. Constitution’s provision for peaceable assembly and petition of grievances. By citing these amendments and the

Treaty of Cession, the petitioners made the case that as Native citizens of the United

States, the law protected them in their rights to “tribal or other property,” which in this case was their reindeer and grazing grounds that had been confiscated by the Lomens.66

In this way, they used the institution of U.S. citizenship to make collective claims to land and economic sovereignty, cutting against the individualization of property rights in

Allotment Policy.

The petitioners also citizenship and the language of “civilization” in arguing for exclusive reindeer rights and the right to manage their own affairs. They made the case that the reindeer industry had originated for the benefit of Alaska Natives and that their communities at the time numbered roughly 8,800. They anticipated that within ten years,

“this number will increase to about 10,500” and that combined with neighboring communities, there were “20,000 Natives connected directly or indirectly with reindeer.”

While they pointed out their dependence on reindeer, they carefully demonstrated that their rights as Native people to the protection of their deer under the federal program did not render them dependent on the government. They pushed back on the constructions of

“wardship” imagined by federal officials, arguing that they were as “civilized as measured by the surrounding white civilization in this district and throughout Alaska” and that as able citizens voted at “Territorial and Municipal elections,” and readily

66 Ibid. 111

recognized the laws of the territory. Importantly, they also situated themselves as savvy business-minded capitalist entrepreneurs: we extend credit to whites and we accept credit from the whites (…) we purchase stoves and heaters, lamps, gasoline and kerosene, coal, yard goods, clothes, musical instruments, radios and phonographs, sewing machines, shoes, boots, and rubbers, rifles, shotguns and ammunition, marine engines, fish nets, general store articles of all kinds, food supplies of all kinds, in fact we use limited quantities of almost every national advertised article.67

They contended that the Lomens had illegally and insidiously conspired with federal officials to edge Native herders out of the reindeer industry and relegate them to a status as wage laborers for the Lomens rather than owners of independent herds. The petitioners thus made claims on the federal government in such a way as to establish their rights as

Native people to the protection of their property in reindeer without conceding a dependency on the federal government that might be construed with “wardship.” In the following years as territorial and federal officials sought a solution to the reindeer controversy, this distinction became increasingly important.

The petition then embarked on a lengthy indictment of the reindeer administration and called for an investigation into what the petitioners referred to as the “Mozee-Wilbur-

Trowbridge-Gilman-Brewster matter.” The scandal to which they referred was the removal of Mozee from the office of Reindeer Superintendent by Secretary Wilbur of the

Interior Department “without just cause and without a hearing.” They argued that “this dismissal has a direct bearing upon our dispute with the Lomen interests” and accused the administration of removing Mozee simply because of his support of Native complaints against the Lomens and they blamed the Trowbridge-Gilman report (the same report that had been heavily criticized by Nash and Ryan previously) for his encouraging Wilbur to

67 Ibid. 112

execute the dismissal. They characterized the Towbridge-Gilman report as a “an official

White Wash for all things Lomen” and cited a long history of corruption and collusion among Carl Lomen, District commissioners, and federal officials in efforts to obtain deer from Native communities through intimidation, theft, and coercion.68

The amount of detail in the petition raised eyebrows among some federal officials—namely those accused or implicated in the scheme—especially Lyman

Brewster. (Mozee’s replacement) In response to the petition, which was printed in the

Alaska Press, he accused one George Goshaw, President of the Arctic Alaska Fur

Corporation based out of Shishmaref—a small village on the Seward Peninsula—of authoring the petition. Brewster contended that the petition, while bringing attention to

“previous troubles,” also contained “numerous grievances, concerning which the natives of that area would not be informed, nor interested.”69 He, along with Territorial Governor

Carl Stenson, argued that the four Native herders could not possibly have known what they were signing, even going so far as to smugly suggest that “very likely the signatories would willingly sign statements acknowledging their ignorance.”70

Brewster and Stenson’s dismissal of Native protestors is profoundly problematic.

Allockeuk, Sinnok, Tngwenuk, and Etuktituk were likely quite aware of the political strings attached to the reindeer program, and previous Native activism against the

Lomens reveals a deeply rooted conflict in which Native activists had continuously protested Lomen encroachment on their rights to deer and the dismissal of their allies

68 Ibid. 69 Lyman Brewster to George Goshaw, January 23 1935, Alaska Reindeer Service Decimal Correspondence 000.—0047, Box 1, File 010 1933-1935 Publications and Newspaper Clippings Etc., RG75, National Archives and Records Administration College Park. 70 Carl Stevenson to Lyman Brewster, February 13, 1935, Alaska Reindeer Service Decimal Correspondence 000.—0047, Box 1, File 010 1933-1935 Publications and Newspaper Clippings Etc., RG75, National Archives and Records Administration College Park. 113

from positions within the reindeer administration. Furthermore, regardless of whether or not the political conflicts interested them, they—at the very least—had managed to leverage the tensions between various levels of administrative officials in ways that were potentially useful in their struggle for economic sovereignty in the reindeer industry. By affixing their signatures to a petition in which the first order of business was the establishment of legal grounds for their grievances against the Lomen Corporation and white interference in the reindeer industry, these men acted deliberately. We must therefore recognize this petition, regardless of its author, as a political act that situated

Native herders in relation to the federal government as Native citizens of the U.S. who were entitled—solely—to reindeer ownership.

It is unclear what direct action, if any, was taken as a result of the 1935 petition, though the following year Congress held extensive hearings on the conditions and needs of American Indians, and special attention was devoted to Alaska Natives and the reindeer problem. The hearings began with a statement from Territorial Delegate

Anthony Dimond in which he discussed recent developments in federal policy toward

Alaska Natives. He discussed the recent passage of the Tlingit and Haida Jurisdictional

Act that allowed the Tlingit and Haida of southeast Alaska to sue the United States for land loss. Importantly, he also discussed the very recent (May 1, 1936) passage of amendments to the Indian Reorganization Act, which extended some elements of the legislation to Alaska, namely the ability of Alaska Native villages to incorporate for purposes of self-government and recognition of collective land ownership. He then turned to the issue of reindeer, suggesting that the welfare of Alaska Natives was “closely bound

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up with the use and ownership of reindeer” and that upon white acquisition of reindeer,

“disputes soon arose” giving rise to “extremely bitter feeling.”71

Dimond argued that immediate action was warranted and called attention to a bill he had introduced in the previous session of congress “providing for the purchase by the

Government of all Alaska reindeer owned by others than natives” and providing that

“such deer be given to the natives or held in trust for their use and benefit.”72 The bill in question was H.R. 9959 and it aimed to “establish and maintain for the said natives of

Alaska a self-sustaining economy” through the reindeer industry. It authorized the

Secretary of the Interior to purchase or otherwise acquire through the “exercise of eminent domain” on behalf of Alaska Natives “reindeer-range equipment and other property.” (Curiously it does not appear that this bill was meant to include actual deer despite Dimond indicating that that was his intention. Later versions of the legislation did, however.) To carry out this plan, the bill called for the appropriation of 2 million dollars.73 While Dimond’s intentions were likely in the spirit of self-government embodied in the IRA he lamented that “strong opposition to certain features of this bill was expressed by some of the [Natives] of northwestern Alaska,” thus the bill died with the adjournment of Congress.74

Indeed, many Native communities had expressed strong opposition to the possibility that the federal government would hold reindeer in trust for herding communities and individuals. These objections echoed those that American Indians in the

71 74th Cong., 2nd Sess., Hearings before a Subcommittee of the Committee on Indian Affairs Part 3 (Reindeer) Senate, 19727. 72 Ibid. 19727 73 HR 9959, in 74th Cong., 2nd Sess., Hearings before a Subcommittee of the Committee on Indian Affairs Part 3 (Reindeer). 74 74th Cong., 2nd Sess., Hearings before a Subcommittee of the Committee on Indian Affairs Part 3 (Reindeer) 19727-19728. 115

contiguous states had voiced regarding the IRA on the grounds that it gave the federal government an unwarranted amount of control over Native affairs. In this context, the reindeer industry once again became the battle ground for determining the legal status of

Alaska Natives and their relationship to the federal government. In a number of correspondences from Thomas Gaffney, a U.S. Marshal in Nome, to Anthony Dimond,

Gaffney relayed the primary reasons for Native opposition to the bill. He informed

Dimond that Native herders “resented what they construed as the government owning the deer” and that they worried about their ability to use the deer in the flexible manner that they had been afforded in the past. One Native herder lamented that “If I die (…) I cannot leave my deer to my children. The government owns them, and my children will not get justice.”75 Gaffney continued that “it is not so much the passage of the bill that affects them,” but rather “who will administer the act, how he will do it, who will be in command, and so forth.” He expressed exasperation that Native herders continued to insist that they would “above all else (…) own the deer themselves in the same relation as the white man would own cattle, horses, or other things.”76 Dimond later wrote W.T.

Lopp (former superintendent of the reindeer program) that the primary concern and opposition among Native herders to his bill was that, quite simply, they were “evidently unwilling to trust the Secretary with any further power.”77 Underlying these suspicions was concern that “the [Lomen’] organizations still control all the reindeer officials in

75 Thomas Gaffney to Anthony Dimond, February 21 1936, Series 3, Box 8, Folder 78, Anthony Dimond Papers, Rasmuson Library Arctic and Polar Regions, University of Alaska Fairbanks. 76 Ibid. 77 Anthony Dimond to W.T. Lopp, February 29 1936, Series 3, Box 8, Folder 78, Anthony Dimond Papers, Rasmuson Library Arctic and Polar Regions, University of Alaska Fairbanks. 116

Washington and Alaska” and that “H.R. 9959 is some trick to force them to sell their slaughtered deer to Lomens or ship more meat to Seattle on Lomen vessels.”78

There were Native communities that supported the bill, in whole or in part. For example, the community of Shaktoolik sent a petition to Delegate Dimond in favor of the bill with over fifty signatures, and the Koyuk Reindeer association supported section one of the bill in which the federal government would be committed to establishing, for

Natives of Alaska, “a self-sustaining economy by acquiring and organizing (…) a reindeer industry or business,(…) encouraging and developing native activity and responsibility in all branches of said industry or business, and by preserving the native character of said industry.”79 (emphasis mine) Furthermore, the Teller Reindeer

Company wrote Dimond urging “the Government to purchase the Lomen Reindeer in

[the] Teller Range” and give the deer “to the Eskimos who needs [sic] the deer most.”

They listed further demands, including that for a grazing range for “our Native Company only” and a request “that Mozee be reinstated to [his] former position in the Reindeer

Service.”80

Along with the 1935 petition, these letters in response to Anthony Dimond’s proposed legislation reveal how the ambiguous nature of the legal status of Alaska

Natives that was manifest in the decades long reindeer project came to be the platform on which Native herders would come to define this status for themselves. While some federal officials may have used the concept of wardship as justification for the exclusion

78 W.T. Lopp to Anthony Dimond, February 25 1936, Series 3, Box 8, Folder 78, Anthony Dimond Papers, Rasmuson Library Arctic and Polar Regions, University of Alaska Fairbanks. 79 Natives of Shaktoolik to Anthony Dimond, March 24, 1936; Koyuk Reindeer Association to Anthony Dimond, April 15, 1936, Series 3, Box 8, Folder 78, Anthony Dimond Papers, Rasmuson Library Arctic and Polar Regions, University of Alaska Fairbanks; H.R. 9959, Sec. 1. 80 Teller Reindeer Company to Anthony Dimond, April 20, 1936, Series 3, Box 8, Folder 78, Anthony Dimond Papers, Rasmuson Library Arctic and Polar Regions, University of Alaska Fairbanks. 117

of whites from the reindeer industry (Nash, for example), Native herders saw things differently. They understood their position as Native citizens with rights to property and economic autonomy as the basis by which they made exclusive claims to deer ownership.

The reindeer program had originated for their benefit as Native people as a remedy to extractive colonial enterprises that undermined their customary economies. After decades of herding and attempting to assert sovereignty over the reindeer industry in the face of white encroachment, Native herders refused the status of government ward and deployed their vision of Native U.S. citizenship as the vehicle through which to make claims on the federal government in the protection of their property.

Native demands for increased autonomy and more authority within the reindeer administration intensified at Congressional hearings in the summer of 1936. Five members from the Reindeer Board at Nome attended the hearings in July in Nome: Jim

Brandon, Roger Menadalook, Norman Lee, Peter Larson, and Bob Oumauk. Oumauk testified regarding the lack of cold storage facilities (an amenity monopolized by the

Lomens at the time) to ensure that reindeer meat could stay fresh for market. He testified that the deer had become an essential element of their economies that consisted of “seal and walrus and oogaruk [sic]” (the correct word I think would be oogruk, which is seal— this must be a typo). By describing the Native blended economy that had developed in western Alaska, Oumauk was also affirming Native rights to their customary resources and their rights to harvest or develop them as they saw fit. Furthermore, Oumauk also resisted attempts by Senators to undermine Native economic self-determination through settler colonial notions of modernity. When challenged by Senator Elmer Thomas (D-

Oklahoma) about the legality of Native sealers using outboard motors in the harvesting of

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seals, Oumak replied “[I] don’t know about that but we go anyway” and he called for governmental assistance in expanding Native reindeer operations to include a market

“Outside” (this term is typically used by Alaskans in reference to the contiguous states) for the sale of reindeer meat to supplement the dwindling supply of seals and walrus.81

Native herder James Brandon likewise testified as to the need to reaffirm the reindeer industry as a Native enterprise. He testified that he had been herding since he was eleven years old, and that “ever since the Lomens entered and some of the other white people the trouble began. Before white people entered into reindeer business everyone was willing to herd and was prosperous.” He also called for the reinstatement of

Mozee, which Roger Menadelook later seconded in his testimony before going even further and making a powerful demand for a Native herder to “work in the office along with the superintendent so that he could learn how it is done and take the superintendent’s place.” He contended that Native herders should have a “voice in the supervision of our deer. Not only the actual handling but partake in the supervision.”82 To these men, their engagement with the reindeer industry and ownership of deer did not make them wards of the government, but rather entitled them to positions of authority within the broader administration of the reindeer industry along with increased autonomy over their herds and the right to expand their business as they saw fit.

Roughly one year later, the Committee on Territories considered reindeer legislation again in the form of H.R. 5126. This bill, introduced once again by Delegate

Dimond did include reindeer in addition to range equipment as part of non-Native owned property that the government would acquire. As the committee debated the bill, the

81 74th Cong., 2nd Sess., Hearings before a Subcommittee of the Committee on Indian Affairs Part 3 (Reindeer) 2078-2082. 82 Ibid. 20117 119

connection between the legal status of Alaska Natives, citizenship, land, and settler imperial tensions became clear. Congressman mused as to what the federal government’s responsibilities were to Alaska Natives and whether or not the federal ownership in trust of reindeer was compatible with their ideas about Native U.S. citizenship, and if such a program did not, in fact, violate the rights of white settlers who had ventured into the reindeer business. It is here that the discourses that shaped future Alaska Native struggles for sovereignty, U.S. citizenship, equality, and land emerged and the true nature of the reindeer industry as part of the broader ambiguity over the relationship of Alaska Natives to the federal government crystalized.

Hearings commenced with a statement from Dimond regarding white ownership of deer in a program that was initially intended for Alaska Natives, and that since the first purchase of deer by non-Natves in 1914, feelings of hostility and bitterness had only intensified as Native herders were edged out of their business, “and the whole thing is now in sort of a mess.” He continued that the provisions of the “bill would limit the ownership of reindeer to natives of Alaska and keep anyone else from acquiring title to reindeer except for the purpose of slaughter and taking them out of the Territory.”83

Almost immediately, Representative Cassius Dowell (R-Iowa) seized on this key provision of the bill and Alaska Native economic sovereignty. He queried Dimond as to whether the “bill intended to prohibit white people from owning or controlling any interest in the reindeer?” When Dimond responded in the affirmative and explained the nature of federal acquisitions in deer and equipment, Dowell charged, “do you not contend this is showing discrimination against the settlers?”

83 House, 75th Cong. 1st Sess., Hearing before the Committee on the Territories (Washington D.C.: GPO, 1937), 5 120

Dimond conceded that it did, and in his explanation as to why the committee should find this acceptable reveals the contradictory nature of the reindeer program as a whole.

Congressman Dowell and the Committee Chairman mused as to why white settlers would concede to being overtly excluded from the reindeer industry. Importantly, Chairman Lex

Green made a critical comparison—he wondered aloud:

The fishery industry makes money and they do not care to sell to the natives. You have trouble to get enough of these waters for the natives to fish in. Are these people who own the reindeer now making money and do not want to sell, or are they not making money and do want to sell?84

Here Dimond confessed that while he did not know all the details of the business, “I do not see how the white men can make a financial success of this thing, and that is an additional reason I am perfectly willing and indeed eager to have this limited to natives.”85 Indeed, talk of the reindeer program as an economic failure in terms of large scale capitalist industry was not new. Just the year before, Territorial Governor John Troy wrote Dimond that “single counties in Oregon and Utah can produce more mutton and lamb” and “single counties in Missouri and Iowa can produce more hogs than Alaska can produce reindeer. It would be absurd to hope that there would be any profit to Eskimos or

Indians or the government in such an enterprise.” For this reason, he conceded that “the rearing and grazing of reindeer should all be in the hands of the Eskimos and Indians.”86

These appalling confessions reveal a number of important things about the reindeer industry and Alaska Natives’ relationship with the federal government. First, it reveals the true nature of the reindeer industry as a placeholder/surrogate/smokescreen

84 Ibid., 7 85 Ibid. 86 John Troy to Anthony Dimond, January 25, 1936, Series 3, Box 8, Folder 80, Anthony Dimond Papers, Rasmuson Library Arctic and Polar Regions, University of Alaska Fairbanks.

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for the ambiguous legal status of Alaska Natives, their land, and sovereignty. By designating the reindeer industry as the exclusive endeavor of Alaska Natives, territorial and federal officials could effectively avoid larger debates over land and sovereignty. In doing so, the colonial extraction of Alaska’s resources and the white appropriation of land for these purposes could remain obscured from these debates. This is critical to

Alaska as a settler imperial space because the logic used to justify the reindeer legislation is irreconcilable with both assimilatory rhetoric of citizenship and economic inclusion of

Alaska Natives within settler colonial economies and those of tribal economic self- determination reflected in the IRA in which land and self-government were fundamental elements. While Dimond argued that H.R. 5162 aimed to give Alaska Natives more control over the reindeer industry itself by allowing Native herders to develop and implement their own “rules and regulations to govern the range,” the broader objective was clearly to provide an economic placeholder that would make the exclusion of Alaska

Natives from the “real” economies of Alaska (fishing, mining, etc.) and the refusal to recognize land rights appear benevolent. Indeed, Dimond stated that he would “insist as strongly as I can upon home rule for the natives of Alaska as to all matters which concern the reindeer.”87 However, by centering Alaska Native economic affairs in the ownership of reindeer, discussions of land, resources, and recognition of indigenous sovereignty could be all together avoided.

In this context, any discussion over the legal status of Alaska Natives in these hearings came to be articulated in terms of citizenship and race, laying the framework for future Alaska Native struggles for land and sovereignty in the WWII era (Chapter 6). Not

87 House, 75th Cong. 1st Sess., Hearing before the Committee on the Territories (Washington D.C.: GPO, 1937), 9. 122

to be deterred by the realities of the reindeer industry that made it a non-lucrative enterprise for white settlers and therefore “suitable” as a “Native only” industry,

Representative Newt Mills (D-Louisiana) followed up on Dowell’s inquiry. He asked whether “it would be unconstitutional for these people [Alaska Natives] to discriminate, to say what type of business one fellow can be in, would it not?”88 Dimond replied that he didn’t believe there was anything unconstitutional about the bill, and that “if Congress can appropriate 1 million or 10 million dollars” for education and welfare of American

Indians “I do not know of any reason why they cannot buy up the reindeer.” He concluded that “It is nothing more than Congress has done in the past creating a reservation on the public lands” in the contiguous states. However other congressmen disagreed, including John Dempsey (D-New Mexico) who argued “there is a difference in assigning lands to Indians or a race of people as compared to taking some industry and saying no one except certain people could engage in that industry.”89

Despite assurances from Dimond that the federal government had originally intended the reindeer industry to be for the benefit of Alaska Natives, many continued to object to the bill on the grounds that it was both contradictory and discriminatory throughout the hearings. Congressman John Rankin (D-Mississippi) wryly queried of the

Interior Department’s Supervisor of Alaskan Affairs, Paul W. Gordon, as to whether or not he thought “it is a little incongruous to permit the canning interests to drive the

Indians from their fishing grounds, to deprive them of a method of earning a livelihood

(…) and then go into northern Alaska and buy these reindeer?”90 While Rankin supported the regulation of outside corporate fishing interests, his intent was clear as he followed up

88 Ibid 7. 89 Ibid. 8. 90 Ibid. 21 123

by stating that Alaska’s natural resources (including reindeer) should be for all “those who want to make Alaska their permanent home.”91 The committee soon after moved on to discussions of other pending legislation, however not without Congressman Newt

Mills chiming in once again to object to the bill on a number of grounds, including that he found that it would “place the reindeer business in direct competition with the cattle business of the continental United States” and that “if adopted will unquestionably show a discrimination between the Eskimo and the white man.”92

Mills’s objections reveal both the settler imperial paradox of the reindeer industry and the emerging discourses of race and equality that underlay future debates over Native sovereignty, land, and citizenship in Alaska. His first objection here, that the reindeer would then be in competition with the cattle industry, demonstrates that Alaska Natives were never intended to assume any kind of viable economic role in the territory or the continental United States. The second demonstrates how the rhetoric of rights would come to play a critical role in the dispossession of Alaska Natives from their land and the disavowal of their economic sovereignty. The reindeer industry was at the nexus of these tensions, however the long history of Alaska Native activists asserting exclusive rights to the deer industry and their attempts to develop the industry (in some cases) for commercial export testifies to Alaska Native claims to economic sovereignty and their rights as U.S. citizens to participate in the economic life of the territory.

The reindeer legislation that eventually passed Congress, which President

Franklin Roosevelt signed into law in the following weeks, kept many of Delegate

Dimond’s initial objectives in tact. The bill authorized the Secretary of the Interior to, “by

91 Ibid. 22. 92 Ibid. 31. 124

purchase or other lawful means, including exercise of the power of eminent domain, for and on behalf of (…) natives of Alaska” acquire all “reindeer, reindeer-range equipment, abattoirs, cold-storage plants, warehouses, and other property” in the establishment and maintenance of the reindeer industry as a “self-sustaining economy” for Alaska Natives.93

Administrative responsibilities were transferred to the Alaska Division of the Office of

Indian Affairs on July 1, 1937. The act required all non-Native owners of deer to report their deer titles within one year and in 1939 Congress appropriated $720,000 for the purchase of non-Native owned deer. The act also vested in the Secretary of the Interior the authority to receive and expend all “loans, grants, or allocations” necessary for carrying out the objectives of the act. The Secretary of the Interior was also vested with organizational and management authority over the reindeer industry and charged with encouraging and developing “the activity and responsibility of said natives in all branches of said industry or business.” Additionally, the act conveyed sole authority to distribute reindeer and property to the Secretary of the Interior “in the form of gifts or under such conditions as the Secretary of the Interior may prescribe” and to determine and distribute profits as he saw fit. Transfer of these responsibilities to Alaska Natives or Native reindeer corporations, the appointment of Native herders to supervisory positions, and the development of rules and regulations were also at the absolute discretion of the Interior

Secretary. The only right retained by Alaska Natives in the management of their deer was the ability to transfer to “children or other native relatives by gift, sale, devise, or bequest, or (…) transferred or passed by descent” any deer or interest, stock, or ownership in any herding organizations or businesses.94 In yet another twist of fate, the descendants of

93 Public No. 413, 75th Congress, 1st Session—Ch.89700September 1, 1937. 94 Ibid. 125

Sámi herders who had remained in the reindeer business—some amassing large herds— were likewise included in the provision requiring all non-Native owners to part with their deer.95

Reindeer and Gold: A Colony of Immigrant Sámi Citizen Pioneers The reindeer industry had implications beyond the relationship of Alaska Natives with the federal government, and the fierce debates about race, citizenship, and nation that often found violent expression in the American West in the late 19th and early 20th centuries are deeply entrenched in the project. Particularly, Jackson’s importation of

Sámi herders for labor in a U.S. territory erupted in controversy in 1910. Perhaps as a harbinger of trouble to come, Jackson had noted in his 1894 report that the plans to import Sámi labor caught the attention of a number of national newspapers whose contributors charged that the undertaking was in violation of the 1885 Contract Labor

Law which prohibited “the importation and immigration of foreigners to perform labor in the United States, its Territories, and the District of Columbia.”96 Luckily for Jackson, the

United States Superintendent of Immigration Herman Stamp concluded that Sámi immigration for reindeer herding could move forward given that the law provided an exception when skilled labor for a particular industry was not available in the U.S. Given that reindeer herding was an entirely new industry, there were no further objections.

However, when just a few years later gold was discovered in the Klondike in 1896 and then in 1899 near Nome—just a short trip from Teller Reindeer Station—Sámi immigration to Alaska was drawn to the center of disputes over race, citizenship, and settlement.

95 Willis, “A New Game In the North.” 96 Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1894), 12. 126

For the federal government, there was significant interest in increasing the white population in the territory and in the midst of the gold frenzy, and the U.S. War

Department took a sudden interest in the acquisition of reindeer and Sámi herders for

Alaska, transforming the industry by significantly increasing the number of Sámi—and reindeer—in the territory. Likewise, for the Sámi, classification as white opened doors to citizenship and other benefits. However, some of these herders pursued gold mining after the expiration of their government contracts discovered that such designations were not concrete, and their immigration to Alaska had coincided with escalating conflicts over the construction of a racialized systems of immigration to the United States.

The Klondike and Alaska gold rushes drew thousands of prospectors into the territory, and while some struck it rich, there were many tales of would be miners suffering through the territory’s harsh winters deep in the interior and out of reach of communication and supply lines. In 1897, the federal government, alarmed by reports of

American citizens stranded and starving in the Alaskan wilderness, found itself in the reindeer business, at least temporarily. That year, Congress passed an act that directed the

War Department to allocate funds for the purchase of provisions and the means to transport said supplies to the stranded miners. Despite previous Congressional denials of funding for the project, in this moment, Jackson’s reindeer scheme looked particularly appealing. The Interior Department contacted Jackson in early December with instructions to contact the Secretary of War who then ordered him “to proceed at once to

Norway and Sweden and purchase 500 reindeer, broken to harness, with sleds, harness, and drivers for hauling supplies into the Yukon Valley.”97 Jackson, however, had already

97 Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1898), 32. 127

dispatched Kjellmann to Norway as the three-year contracts of the Sámi herders who arrived in Alaska in 1894 were expiring, and they sought replacements for those who wished to return to home. This time, however, Jackson sought to avoid this kind of turnover in the future and therefore ordered Kjellmann to only recruit herders who would agree to make Alaska their permanent home. With the sudden support of the War

Department and subsequent allocation of long sought after federal funding, Jackson’s desires for a permanent “colony” of Sámi herders seemed an inevitable reality and he secured contracts for 43 Sámi, 15 Norwegians, and 10 Finns.

Indeed, the War Department’s primary concern was for non-Native miners in the territory, however the contracts signed by those Sámi who agreed to immigrate to Alaska included an agreement to instruct Alaska Natives in herding—revealing Jackson’s ambitions. In seizing this opportunity to combine the objectives of the War Department with his own desires to bring a permanent colony of reindeer herders to the territories, issues of citizenship and settlement became deeply fraught, generating tensions over who could claim belonging in Alaska. Perhaps also without the federal government’s knowledge, Jackson instructed his interpreter in Norway to draw up a contract in which only Sámi who intended to make Alaska their permanent home and become U.S. citizens would be accepted. Then, on the journey from Norway to Alaska, during a stopover in

Port Townsend, Washington, a number of herders took out their naturalization papers, declaring their intent to become U.S. citizens. However, upon the party of Sámi and reindeer arriving in Alaska, the War Department had been informed that the dire conditions of the miners had been exaggerated, therefore rendering the rescue mission mostly unnecessary. Having signed contractsthe government was obliged to honor them,

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and rather than rescuing miners, the Sámi were relegated to Jackson’s supervision to train

Alaska Natives in reindeer husbandry. Thus, in a round about way, Jackson had secured his reindeer and the necessary experienced herders and had secured funding for them from the government. In his report to the Commissioner of Education that year, he declared that in his “estimation, next to the discovery of gold, the most important event, commercially, in the history of Alaska during this year is the importation of this colony of Laplanders.”98 Little did Jackson know how entangled Sámi migration to Alaska and gold would become.

An examination of Sámi experiences in Alaska reveals the ways in which they leveraged their positions as desirable reindeer herders in the pursuit of objectives that neither Jackson nor the federal government could have anticipated. It also reveals much about crystalizing discourses of race and citizenship in the United States. Many Sámi who remained after their government contracts expired struck out in search of a fortune in the gold mines, a pursuit which rent open the vulnerabilities in the bureaucratic apparatus of the reindeer project and exposed anxieties surrounding the regulation of citizenship, settlement, and migration in U.S. territories. In his report to the Commissioner of

Education in 1900, Jackson lamented that of the 86 Sámi who remained in Alaska at the end of their contract terms, “17 to 20 have made fortunes in the gold mines,” making anywhere “from $1,000 to $100,000. This had greatly excited all the Lapps.”99 Realizing their worth to the reindeer project, and Jackson’s need to keep experienced herders, those who remained in the reindeer industry then “demanded a large increase in their wages.”

98 Ibid., 47. 99 Sheldon Jackson, Report on Introduction of Domesticated Reindeer to Alaska (Washington D.C.: GPO, 1900), 12. 129

Not wanting to lose his herders to the mines, Jackson found it necessary to oblige with an increase of “$500 annually, with rations and clothing.”100

Not only were those who remained in the reindeer business able to leverage their positions to their advantage, but the entrance of Sámi immigrants into the gold mines also gestures profoundly to their ability to leverage Jackson’s dependence on them for the reindeer business in pursuit of their own objectives. It is entirely plausible that any number of the Sámi who came to Alaska as reindeer herders, did so as a means to secure

U.S. citizenship so that they could legally stake mining claims in the territory. In fact,

Indian Agent Frank Churchill’s 1905 investigation into the relationship of the missionaries and the reindeer industry speculated to this possibility. Churchill wrote in his report that “whether true or false, it is believed by many people that one

Kjellman…had for his underlying motive a colonization scheme and by this means the expenses of the emigrants were paid by the United States.” Of those who came to Alaska, some had returned home, but “most of those who remained either deserted or separated themselves from the herding business, thus giving color to the claim that they were merely emigrants seeking their fortune in America.”101 This would have made Kjellman’s alleged promise that they would be “treated as white” even more important. Indeed, some even began their search for gold within their first year in Alaska, prior to the expiration of their government contracts. Given the national trends in immigration regulation at the turn of the century, the issuance of mining claims to individuals perceived by many as non-white sparked controversy in the territory and in Congress.102

100 Ibid. 101 Churchill, 35. 102 For immigration regulation late 19th and early 20th century, see Mai Ngai Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004); Barbara Welke, 130

At the height of gold rush fever in Alaska, a number of rather large claims were staked at Cape Nome in 1899. These claims were identified and registered by two

Swedish missionaries and a number of Sámi, drawing fire from prospectors in the region who likened the Sámi to the Japanese and challenged the legality of their citizenship on the basis of race and the temporary nature of their contracts.103 In response, these miners formed “law and order leagues” whose aim was “the enforcement and support of the law” and the preservation of “peace and good order in the community.” The enforcement of mining codes was paramount to these objectives as was the protest of mine ownership by non-citizens.

The 1884 Organic Act had extended U.S. mining codes to Alaska, and when

Congress convened in 1900 to once again address civil government needs in the territory, the conflict over mining claims and the settlement of Alaska with immigrants erupted.

The Law and Order League in Council City, Alaska memorialized President William

McKinley in May of 1899 in opposition to mining claims located by those who had immigrated with Jackson the previous year. In the memorial they protested the Sámi mining claims on two counts, the first a legal technicality in the naturalization process and the second on account of race. While some Sámi had taken out their naturalization papers before the clerk of the court of Port Townsend, a handful had not had time to do so. Upon arriving in St. Mihiel, Alaska, Jackson took the remaining Sámi who had not yet declared their intent to become citizens before a United States court commissioner.

There they declared their intent to become U.S. citizens, not knowing that a court commissioner did not have the authority to begin the naturalization process for them. It

Law and the Borders of Belonging in the Long Nineteenth Century United States, (New York: Cambridge University Press, 2010). 103 Cong. Rec. Senate, 56th Cong., 1st Sess., April 18, 1900, pg. 4364 131

was one of these men, the memorialists charged, that had staked a claim at Cape Nome.

Having not properly declared his intention to become a citizen, they contended the mining claims the Sámi individual had made were fraudulent at worst, and void at best.104

Furthermore, the Law and Order League argued that the Sámi were “in the employ of the United States Government, caring for its reindeer, and are under contract to be returned to Lapland at the expiration of five years from the date of said contract.”105

Indeed, Jackson had ordered Kjellmann to only recruit those who would seek permanent residence as citizens in the United States, and he assumed the contracts had stipulated the same. He reported that he was surprised to learn upon having the contracts translated that they included a provision by which any herders who so desired could return to Norway. It is possible that the League was attempting to cast doubt on the intentions of the herders, and to portray them as opportunistic and manipulative by suggesting that their true aims were to cash in on Alaska’s gold rush before returning to Norway. All technicalities and speculation aside, the League was sure of one thing, which was that regardless of any technicality in the naturalization process, the Sámi “are of the Mongolian race and are prohibited from claiming and locating the public mineral lands of the United States.”

Thus, regardless of all other factors, the League contended that the mining claims were invalid on account of race.

When the Senate convened in April of that year, the conflict had only deepened and the issue of Sámi mining claims had sparked a much larger debate about alien property rights and citizenship in the U.S. Senator Henry Clay Hansbrough had proposed an amendment to legislation for Alaska’s civil government that would prohibit “persons

104 56th Cong. 1st Sess. Senate Document 272, April 6, 1900. 105 Ibid. 132

who are not citizens of the United States, or who prior to making location had not legally declared their intention to become such” from locating, holding, or conveying mining claims in Alaska.106 Apparently, this amendment would have reversed precedent in mining codes which had allowed an “alien” to declare his intent to become a citizen after locating or otherwise taking possession of a mining claim.107 Furthermore, the amendment stipulated that in any “civil action, suit, or proceeding to recover possession of a mining claim […] it shall be the duty of the court to inquire and determine the question of the citizenship of the locator.”108 The significance of this clause lies in its conveyance of the ability to question the citizenship status of an individual who has located and filed for a mining claim to the local courts when previously, alienage of a claimant could “be questioned by the [federal] government only.”109 In other words, anyone who sought an interest in a mining claim that had previously been located could pursue that interest by way of challenging the citizenship status of the original locator. In support of the amendment, Senator Thomas Carter from Montana argued that denying this right to “raise the question as the rights of other parties to [a mining claim] suit” would be tantamount to sending American citizens

“who are now bound toward Alaska…hoping (…) to enjoy their birthright on the public domain (…) to meet all of Asia in open competition on land for which we paid money out of the Treasury of the United States, which is the common heritage of all people of this country.”110

106 Ibid. Apparently Hansbrough had been in collusion with a number of politically powerful lobbyists and lawyers in their schemes to jump these claims near Nome. The scandal eventually included an Alaska District Court judge, attorney general, and marshal. See Kenneth O. Bjork, “Reindeer, Gold, and Scandal,” Norwegian American Historical Association publication, Volume 30, page 130. 107 Manuel v. Wulff, (1894) 14 Sup. Ct. 651, 152 U.S. 505, 38 L. Ed. 532. 108 56th Cong. 1st Sess. Senate Document 272, April 6, 1900. 109 Manuel v. Wulff, (1894) 14 Sup. Ct. 651, 152 U.S. 505, 38 L. Ed. 532. 110 Congressional Record, Senate, April 19th 1900, 4419. 133

While he conceded that if “in the absence of fraud,” the Sámi had made mining claims under “a mistaken sense of official power,” then the technicality should be rectified in their favor. However he held fast in his support for the memorialists—the Law and Order

League—in their right to challenge the legality of the claim.

Senator William Stewart from Nevada objected, warning Senators “you can hardly imagine how far this will go.” He feared that not only would this legislation affect the claims of Asian immigrants (which included Sámi by those who proposed the amendments) but that thousands of lawsuits would be manufactured by those swearing that they had known claim owners “in Italy, and that he was Italian; or he knew him in

Germany, and he was a German.”111 Additionally, the amendments threatened American citizens who were mining in the Klondike in Canada. Should the Senate adopt measures that prohibited Canadians from locating mines prior to declarations of citizenship, what would happen to the property of American citizens in Canada, should the Canadian government decide to enact similar legislation?

Perhaps most importantly, however, the amendments had the potential to render all Sámi mining claims void should the Senate conclude that they were, in fact, “of the

Mongolian race.” While the Chinese Exclusion Act of 1882, which designated all

Chinese as ineligible for citizenship (and per the amendments, ineligible to locate mining claims) did not use the term “Mongolian,” some previous state laws did.112 The discourses of race that surrounded the Sámi and their mining claims in Alaska arose in an era of increasingly formalized Asian exclusion and violence. In 1858, the California legislature had enacted a statute barring any of the “Chinese and Mongolian race” from

111 Ibid., 4421. 112 California 1858 statue barring those of the “Chinese and Mongolian race” from entering the state. Later struck down by Supreme Court in 1862. 134

entering the state, and at the national level, Congress maintained naturalized citizenship as limited to white persons until an amendment in 1870 included “persons of African nativity or African descent.”113passed the Asian Exclusion Act in 1882, and in 1885 the

“committee of fifteen” drove the Chinese out of Tacoma, Washington.114 The states of

California and Washington, followed a number of western states in the first quarter of the

20th century would come to pass laws prohibiting “aliens ineligible for citizenship” from owning land.

On the other hand, many senators also realized the potential for the long-desired settlement of Alaska, if the Sámi were to be ultimately classified as white. For example,

Senator Benjamin Tillman of South Carolina worried that “we are only coming to know and to realize the valuable addition to our territory the purchase of that region is” and it is

“altogether improbable that there will be any permanent settlers (…) among our own citizens.”115 He mused that those who migrated to the United States would likely be drawn to settlement in similar latitudes from which they had come, and he feared that should Congress change the mining laws, therefore discouraging the Sámi and other

Scandinavians from immigrating. In doing so, he warned, “we might indirectly do a great injury to the development of Alaska.”116 Rather than of an Asiatic race as the Law and

Order League contended, Senator Tillman characterized the Sámi as “pioneers,” that while “brought here by our Government for a different purpose,” they were willing to brave the Alaskan wilderness when American citizens were not. Tillman concluded that those immigrants from the northern regions of Europe, including the Sámi, were “the

113 Barbara Welke, Law and the Borders of Belonging, 70. 114 Pegues, “Interrogating Intimacies,” 79. Pegues importantly notes that a member of this committee was James Wickersham, future District Judge in Alaska and the eventually Alaska’s delegate to Congress. 115 Congressional Record, Senate, 56th Cong., 1st Sess., April 19th 1900, pg. 4424. 116 Ibid. 135

very high type of the Caucasian race,” and as such were “as desirable a class of emigrants as have ever come to this country.”117

The contest over the racialization of the Sámi reveals, as Juliana Hu Pegues has argued, how conceptualizations of Alaska are constructed through ideas about settler colonialism’s “proper subject.” The reindeer project rendered the indigeneity (to Norway) of the Sámi illegible, repositioning them as participants in the settler colonial project. In the context of late nineteenth and early twentieth century discourses of race, white settlers in Alaska along with federal officials and senators construed them as either Asian and therefore ineligible to be classified as “proper” settlers, or designated them as white, therefore welcoming them as pioneers into the “frontier family.”118 It is in this racialization of the Sámi, we find the ghost of “China Joe,” a Chinese baker living in

Juneau. One particularly difficult winter, he is credited with saving starving miners, and for his service to them, he is protected during the driving out of the Chinese that occurred in 1886. 119 Pegues argues that as a baker, Joe was not threatening to the miners as he did not compete with them for Alaska’s resources, but rather supported their endeavors there by providing them food, caring for the sick, and tending the graves of the dead. In this capacity, he was permitted to remain in the territory. Similarly, the presence of Sámi in

Alaska was not contested until they “violated” the conditions of their acceptance—and perhaps the Contract Labor Law of 1885—by pursuing mining, after which they were racialized in two ways: as Asian immigrants in an effort by miners to invalidate their

117 Ibid. 118 See Juliana Hu Pegues, “Interrogating Intimacies: Asian American and Native Relations in Colonial Alaska,” University of Minnesota Doctoral Dissertation, 2014, Chapter 2. 119 Ibid. Pegues also addresses the gendered nature of these characterizations of China Joe, in that his occupations are feminized and nonthreatening to the constructions of frontier masculinity that dominated the colonial imaginary of Alaska during the Gold Rush era. 136

mining claims, and conversely as pioneers in order to increase the population of white settlers in the territory.

In this way, the settler imperial character of Alaska, in which the nature of the territory as part of or belonging to the United States, reveals the interconnectedness of settler colonial projects (Scandinavia and the U.S.) and the splintering along multiple fault lines of indigeneity, race, and citizenship. In this moment the Sámi occupied the position of indigenous people working across the boundaries of settler colonial nation states both within and against colonial structures. In this moment, they were a fundamental component of settler colonial and settler imperial projects. The need for white settlers, or “pioneers,” in Alaska opened an opportunity for them to secure places for themselves in what could otherwise have been exclusionary spaces. Likewise, their function as reindeer herders was integral to a project that inherently sustained ambiguity about the legal status of Alaska Natives within the developing settler imperial landscape.

As tensions over Sámi mining claims faded and Congress refused Hansbrough’s proposed amendments to the mining laws of Alaska, questions of race would ultimately cost the Sámi their stake in the reindeer industry—the settler imperial project that had brought them to Alaska in the first place. When Congress passed the 1937 Reindeer Act, the Sámi were required, like all other non-Alaska Native deer owner, to part with their herds.

Conclusion:

The reindeer program in Alaska was a complicated manifestation of settler imperial tensions in the territory. It represented both an important arena in the contests over the legal status of Alaska Natives and contests over what the relationship of the

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Territory of Alaska was to the United States. The passage of the 1937 Reindeer Act demonstrated how Yup’ik and Iñupiat herders in western Alaska challenged efforts by territorial and federal officials and corporate interests to render their legal rights to land and the obligations of the federal government illegible. Likewise, Sámi success in reindeer herding and mining demonstrates how the circuits of empire, while furthering imperial ambitions of the U.S. state, have inherent vulnerabilities which those who the state seeks to exploit or marginalize can leverage in important ways. Indeed, the conflict over Sámi citizenship and belonging would not be the last time Alaska became embroiled in conflicts over race, migration, and settlement, nor would the Reindeer Act be the last word in the conflict over the legal status of Alaska Natives. Its passage in 1937 came on the heals of two other important pieces of legislation: The 1935 Tlingit and Haida

Jurisdictional Act and the Alaska Amendments to the Indian Reorganization Act. In the pursuit of the passage of these laws, another Alaska Native activist, William Paul Sr., would draw on the same ambiguities as Yup’ik and Iñupiat herders in carving out a distinct legal space for Alaska Native sovereignty, land, and citizenship.

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Chapter Three: “A Special Legal Problem”: William Paul Sr. and the Limits of Settler Imperial Law

While Iñupiat and Yup’ik reindeer herders were navigating settler imperial tensions and defining their relationship to the federal government in western Alaska,

Tlingit and Haida activists in southeast Alaska had formed the Alaska Native

Brotherhood (ANB) and the Alaska Native Sisterhood (ANS) and were likewise seeking out strategies to lay claim to land ownership, sovereignty, and citizenship rights. In the absence of treaties, Alaska Native political strategies relied heavily on their claims to citizenship and the franchise, and early work of the ANB and ANS focused on obtaining a path to citizenship and voting rights for Alaska Natives. In 1915, their efforts were successful when the territorial legislature passed legislation that allowed Alaska Natives to petition for U.S. citizenship. The requirements were stringent, requiring Alaska

Natives to demonstrate to white schoolteachers and judges that they had abandoned all tribal affiliation and lived a “civilized” life.1

Of all Alaska Native political activists, Tlingit lawyer, territorial legislator, and

ANB leader William Paul Sr. is perhaps the most well known and has received the most attention. Paul was a Sheldon Jackson Presbyterian mission school and a Carlisle Indian

Industrial School survivor, and under his mother, Tlingit civil rights activist Matilda

“Tillie” Paul Tamaree’s encouragement, he attended Banks Business College in

Philadelphia, Whitworth College in Spokane, Washington, and earned a law degree through LaSalle University. He was the first Alaska Native to be admitted to the territorial bar, and gained fame across the territory when he successfully defended his mother after she was arrested for inciting illegal voting when she insisted that U.S. voting

1 Many who pursued this route to citizenship performed “civilization” as a resistance strategy while still living life according to Tlingit, Haida, or Tsimshean custom. 139

officials allow Tlingit elder Charlie Jones to be permitted to vote in the 1922 presidential election. After successfully challenging the suppression of Native voting rights, he ran for a seat in the territorial legislature, becoming the first Alaska Native territorial legislator in

1924. While controversial, combative, and often described as ambitious and irascible, he is celebrated for his tireless efforts in the courts and elsewhere on behalf of Alaska Native citizenship and land rights and is remembered as the “Father of Alaska Native Land

Claims.” This chapter focuses on his legal strategies and thought as one of many Alaska

Native struggles for sovereignty, land, and equal citizenship. Because he was such a large figure in Alaska Native politics, we have his oeuvre which gives us detailed insight into his legal thinking, his perception of U.S. legal frameworks, Tlingit law and political/social/economic organization, citizenship, sovereignty, and his strategies for navigating U.S. empire. An analysis of his involvement in Alaska Native land rights issues in the 1930s is a powerful lens through which to see Alaska Native responses to the settler imperial frameworks the federal government sought to impose.

In this chapter I argue that Paul perceived and understood how settler imperial tensions were at play and the ways territorial and federal officials held the legal status of

Alaska Natives in a state of perpetuated uncertainty to avoid reckoning with Native land ownership and nationhood. While not referring to these tensions as settler imperialism, of course, or perhaps not even recognizing settler imperialism as a distinct legal formation,

Paul was astutely aware that the legal relationship of Alaska Natives to the federal government had been handled differently than in the contiguous states and because of that he could make particular arguments for land and citizenship rights by alternately arguing for similarities with or distinctions from the legal situation of Indians “Down

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Below.” In pursuit of voting rights, civil rights, and land ownership, Paul would often argue that particular cases and doctrines that had governed indigenous-U.S. relations in the contiguous states applied to Alaska Natives. He would stitch across the legal gap that territorial and federal officials had created. Other times he would split the gap, placing important wedges between policies as they applied in the contiguous states and the legal and historical situation that characterized Alaska Native-U.S. relations. In doing so, he sculpted U.S. law in ways that reflected Tlingit social and political structure, were conducive to preserving land and sovereignty according to those structures, and ensured

Alaska Native participation as citizens in the social, economic, political, life of the territory and the U.S.

This chapter traces the ways Paul forcefully argued that Tlingit and Haida, specifically, and Alaska Natives across the territory generally, were not tribes in the same sense that federal Indian policy recognized them in the contiguous states and that a tribal designation could not be mapped on to Tlingit and Haida peoples whose political organization, land, and sovereignty were vested in the clan. Rather, he contended that for this reason, Alaska Native rights to land and the exercise of sovereignty over that land were guaranteed on a Constitutional basis different than that of tribes in the states. He sought to have this reflected in legislation (the 1935 Tlingit and Haida Jurisdictional Act and the amendments to the IRA that extended the legislation to Alaska in 1936) and pursued it in the infamous case Tee-hit-ton v. U.S. While many disagreed with his approach, and the loss of the Tee-hit in 1955 was a tremendous blow to tribal sovereignty everywhere, I argue Paul’s collective legal thinking and strategies are profound in what

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they reveal about how settler imperialism worked and how, even in losing Tee-hit-ton,

U.S. legal frameworks could not foreclose Alaska Native legal possibilities.

I also argue that Paul was aware of what was at stake in Alaska’s settler imperial landscape. While protesting the increasing power of the Interior Department and the

Bureau of Indian Affairs in Alaska Native matters in the 1930s and 1940s, Paul threatened that the designation of Alaska Natives as wholly accounted for within federal

Indian law and policy would open the floodgates to land and sovereignty claims that territorial and federal officials along with corporate interests and white settlers had been desperate to avoid by keeping Alaska Natives just afar enough outside those designations.

He knew that if territorial and federal officials brought Alaska Natives fully within anything akin to U.S.-American Indian relations, they would have to account for dispossession resulting from federal refusal to reckon with Alaska Native sovereignty through nation-to-nation negotiations. As we have seen in chapter one, the refusal of the federal government to sign treaties with Alaska Natives was a deliberate strategy to avoid recognizing Alaska Native nationhood, sovereignty, and land ownership. This became the modus operandi by which territorial and federal officials insisted that Native land rights in Alaska were “uncertain.” This ambiguous status, over time, became fundamental in continued land appropriation and resources extraction by white settlers and corporations.

This is in no way meant to imply that the American Indian-U.S. relations had been equitable, or that while recognizing the collective sovereignty of Native nations that the federal government had not continuously sought to undermine, limit, disavow, and dispossess tribes in the contiguous states. Rather, what this chapter aims to do is demonstrate how the insistence on behalf of territorial and federal officials that Alaska

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Natives did not occupy a similar legal status to Indians of the contiguous states, while proving useful for state and corporate objectives, could be—and was—turned into a vulnerability by Alaska Natives. With the understanding that Alaska Natives had been read differently into existing legal frameworks, a relationship he referred to as sui generis, Paul sought to chart out a unique solution and, sometimes to the frustration of his friends, family, and colleagues, he used the courts as his testing grounds.

I trace Paul’s response to settler imperialism through the first attempt to pursue land claims on behalf of the Alaska Native Brotherhood in 1929 and the resulting 1935 Tlingit and Haida Jurisdictional Act, which Paul and lawmakers agreed was distinct from all others previously passed. I then argue that the basis by which Paul argued for distinctions in the Jurisdictional Act became the means by which he successfully lobbied for the extension of the Indian Reorganization Act to Alaska in such a way as to reflect the complexity of Tlingit and Haida social and political structures. After the passage of these pieces of legislation, I focus on the ways Paul pursued the recognition of Tlingit social and political structures in court when he brought suit on behalf of his clan of Tee-hit-ton

Indians in the Court of Claims. Making its way to the Supreme Court, Tee-hit-ton demonstrates the limits of settler imperial law. These strategies reveal how Paul maneuvered the gaps of settler imperialism and to claim new legal ground for Alaska

Native citizenship, sovereignty, and land ownership.

“Stand on [the] rights of citizenship and demand title to their property”: Forming Strategies and Grounding Claims The 1929 Alaska Native Brotherhood Convention in Haines, Alaska, is perhaps universally revered by Tlingit, Haida, and Timshean as the occasion in which they took a stand and resolved to pursue land claims against the United States Government. This

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meeting was, no doubt, foundational in that regard and the implications of the strategies developed at that meeting will be discussed shortly, however I argue that Alaska Natives strategies for navigating the unstable legal landscape that had developed in Alaska as a result of the tensions between settler colonial governance and imperial objectives began some years earlier. In the absence of nation-to-nation negotiations between Alaska Native nations and the U.S. government, the Alaska Native Brotherhood had petitioned for U.S. citizenship since the early 20th century, winning the passage of a citizenship act in the territorial legislature in 1915, nine years before the federal Indian Citizenship Act. The requirements were extremely stringent, however, and therefore few Alaska Natives pursued citizenship status through its provisions. While many may have perceived Alaska

Native citizenship ambitions as an assimilatory move, I argue that many Alaska Natives involved in early citizenship and land claims organizing rather recognized citizenship as a means by which they could make Native land ownership legible to territorial and federal officials. Thus, the early pursuit of citizenship was not assimilatory, but rather demonstrates how Alaska Natives used the institution of citizenship to establish their rights to land as Native people. As Indian policy in the contiguous states developed over the ensuing decades, Alaska Native strategies adapted in response. This chapter will demonstrate how William Paul Sr. and others utilized the flexible nature of settler imperial tensions (in which territorial and federal officials and corporate interests maintained uncertainty and ambiguity regarding the legal status of Alaska Natives as compared to American Indians in order to avoid recognizing sovereignty and land ownership) in making their claims on the government.

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In late November 1920, the Alaska Native Brotherhood held its annual convention at

Wrangell, Alaska. To open the meeting, Andrew Hope (Tlingit), “of the Citizenship

Committee, made the report that all Natives of Sitka voted in the last [federal] election of

Nov. 2nd.”2 Despite the fact that most southeast Alaska Natives had not become U.S. citizens under the 1915 territorial act, ANB members had devised a strategy by which they invoked Section 6 of the General Allotment Act, the Dawes Act, in which it declared that “every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of

Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens.”3

While Alaska Natives were not included in the provisions of the Dawes Act due to the absence of treaty lands or reservations, they saw within section six a means by which they could force recognition of their citizenship status and they successfully tested this theory in the 1920 Presidential election. The ANB in Sitka approached the local precinct judge, R.W. DeArmond, who suggested they might employ the act’s provisions regarding citizenship and each eligible member printed out and signed an affidavit claiming their rights as citizens and their rights to vote in the “election holden [sic] in the Territory of

Alaska on November 2, 1920, for the election of a Delegate from said Alaska to the

Congress of the United States and other officers.”4 The plan, according to Hope, had been

2 ANB Minutes, 1920 Convention November 21-27, Judson Brown Papers, Sealaska William Paul Sr. Archives and Special Collections, Junea. 3 Act of February 8, 1887, An act to provide for the allotment of lands in severalty to Indians on the various reservations. 4 ANB Minutes, 1920 Convention November 21-27, Judson Brown Papers, Sealaska William Paul Sr. Archives and Special Collections, Juneau. 145

wildly successful. The following day of the convention is when William Paul Sr. tied citizenship to strategies for possible land claims.

Paul raised the question of Indian land titles, reading from a letter he had received from the Land Office at Washington that stated “Indians shall not be disturbed in the possession of their lands, but the terms under which they might obtain title to their lands is reserved for future legislation by Congress.”5 As discussed in chapter one, early iterations of policies regarding Alaska Native land and sovereignty rights had established a particular kind of ambiguity in which lawmakers and territorial and federal officials had held Native land rights as uncertain pending an unknown “future” resolution. This uncertainty had stemmed from the early characterization of Alaska Natives as racially and legally distinct from American Indians and the uncertain status of the territory itself as either an appendage of the American West or the first experiment in U.S. overseas imperialisms. While the refusal to recognize Alaska Native nationhood, land, and sovereignty had in many ways proved conducive to those who sought to colonize Alaska for purposes of resource extraction and settlement, here Paul perceived an opportunity in that since “legislation has not been passed covering this point,” the ANB potentially held a substantial degree of influence in the matter. He explained to the convention that because of the Supreme Court decisions in Cherokee Nation v. Georgia and Johnson v

McIntosh, Indians in the contiguous states were considered wards, though the government “must protect Indian property and that “any contract to sell land by any

Indian is null and void and of no effect unless authorized by Congress.” (emphasis and parenthetical phrases original). He then urged the Brotherhood to “go into politics and try

5 Ibid. 146

to enact the following law by Congress; That the Natives of Alaska are now U.S. citizens with all the rights, privileges, and duties of full citizens of the United States.”6

I argue here that this presentation by Paul represents some of his initial thinking on the relationship of Alaska Natives and the federal government. It is clear that he understood Indian law as it applied to American Indians in the contiguous states to also have relevance for the Alaska situation, however by invoking citizenship in conjunction with selected elements of the Cherokee Nation and McIntosh decisions, I contend he perceived a way to stitch seemingly discordant legal frameworks together where necessary, while simultaneously avoiding the potential to render Alaska Natives completely beholden to Indian policy. He saw a new space—one in which the federal government was obliged to protect Indian property, but also where the non-recognition of

Alaska Natives as tribes similar to Indians in the contiguous states meant that by making claims to land and property through citizenship, wardship, as Paul understood it and the federal government had constructed it, could be avoided.

The focus on the association of wardship with Indian legal status was a primary focus of ANB members in addition to Paul, and their experiences likely informed his future legal strategies that aimed to achieve the recognition of Alaska Native land ownership and citizenship rights without coming under the thumb of the Bureau of Indian Affairs.

Peter Simpson (Tsimshian of Metlakatla) related his community’s alarm at discovering the status of their land and their citizenship. The Indians of Metlakatla had arrived in southeast Alaska (their migration and its implications are discussed in greater detail in

Chapter Four) from British Columbia in 1889 under the leadership of an English minister,

Father Duncan. Duncan had petitioned the President of the United States to establish

6 Ibid. 147

Annette Island as a permanent Indian reservation for the community, and in 1891

Congress fulfilled the request.7 However, to Simpson’s dismay, he learned that when he moved off the reservation and built a mill in Ketchikan that, “since he was an Indian, he was not entitled to the mill site” and could not even own his own home. He also related his dismay when the people of Metlakatla, who thought that the sawmill, canneries, and factories they had labored to build and make successful on the reservation belonged to them, learned that “they did not own the ground on which their houses, stores, and homes were built.” Rather, there was no Indian “ownership of homes because the title is reserved to the Government.”8 (emphasis original)

It is likely that the situation on Metlakatla and Paul’s understanding of citizenship and

Indian policy led him to chart a different path that occupied a space between a full legibility of Alaska Natives to Indian law which, while invoking the possibility of the recognition of sovereignty and collective nationhood, was dangerously limiting and would actually cause the dispossession they were hoping to avoid. Paul articulated this tension throughout his life and sought legal remedies to dispossession and discrimination that would guarantee the rights of Tlingit and Haida to participate in the life of the territory but that did not undermine their independence as individual U.S. citizens and as

Tlingit, whose social, political, and economic organizations were valid expressions of their sovereignty, landholding, and U.S. citizenship. The Convention then adopted a resolution, requesting that “the Congress of the United States pass a law embodying the following recommendation; to enact a law so the Natives of Southeastern Alaska,

7 Today, Metlakatla is the only Indian reservation existing in Alaska. More about this process and its legal implications are discussed in Chapter Four. 8 ANB Minutes, 1920 Convention November 21-27, Judson Brown Papers, Sealaska William Paul Sr. Archives and Special Collections, Juneau. 148

including the inhabitants of Metlakatla are entitled to have and to hold and may exercise all rights, privileges, and duties of citizens of the United States, and that they may obtain title to the lands now occupied or claimed by them by following the same procedures and fulfilling the same requirements as are laid down for other citizens of the United States.”9

It is important to keep in mind, too, that it would not be for another four years when

Congress would pass the Indian Citizenship Act, unilaterally making all American

Indians and Alaska Natives citizens. Thus, the emphasis on protecting their citizenship rights—the only means by which Paul and others felt they could secure land claims in which the federal government did not own or hold the land—was paramount.

Because the federal government had designated Alaska Natives as distinct from

American Indians (both racially and legally) they had created both a system that would allow for the exploitation of Native land and resources but, as Paul perhaps suspected, it also created an important vulnerability for the United States. In subsequent years, Paul’s legal strategies would reflect his attempts to align the legal status of Alaska Natives with

American Indians to the extent to which they could make claims to land and a degree of sovereignty over them. He also knew that these tensions in legal status could allow him to be selective, and that the government’s own history of rejecting Indian status for Alaska

Natives would both aid him and frustrate him. Nevertheless, as Alaska Natives continued their pursuit of land and sovereignty the delicate balance of situating Alaska Natives as somewhat inside and somewhat outside BIA policy and federal Indian law became more imperative. This became more explicit at the famed 1929 ANB Convention, where the pursuit of a jurisdictional act that would allow the Tlingit and Haida to bring suit against the government took root.

9 Ibid. 149

“Within the spirit if not within the exact letter of the law”: The Tlingit and Haida Jurisdictional Act of 1935 Five years after the federal Indian Citizenship Act made all American Indians and

Alaska Natives citizens, the ANB and ANS gathered in Haines for what would become a historic meeting. Here, the members voted to pursue a jurisdictional act from the U.S.

Congress that would allow the Tlingit and Haida to collectively pursue claims against the

United States government for lands lost through the long and ongoing process of dispossession and depletion of their resources by white settlers and commercial interests.

I argue that the pursuit and ultimate achievement of a jurisdictional act granting the

Tlingit and Haida the right to organize and file suit against the government is yet another example of their navigation of settler imperial tensions. In order to convince Congress to pass the Jurisdictional Act, they had to convince Congress that they had a legal standing similar to that of American Indians. Additionally, Paul and others wanted to guarantee the pursuit of a settlement that reflected Tlingit and Haida social and political organization and they did this by insisting on wording that permitted flexibility in the manner in which cases were brought. Because of the limitless possibilities for claims that such a provision could potentially allow for, lawmakers scoffed at the notion that the act would not only permit Tlingit and Haida Indians to pursue collective tribal claims but could also initiate claims on behalf of “individuals of the tribes for the taking of individually owned property.”10

However, before the nature of claims that could be brought under the jurisdictional act could be debated, the Tlingit and Haida needed to convince Congress that they occupied a legal status akin to Indians in the contiguous U.S. that had secured

10 H.R. 5606 1931 and S. 1882 1935 looks to be struck out in 1933 iteration H.R. 3894 Appears that H.R. 2756 also contained provisions for individual property rights but this was stricken out as well. 150

jurisdictional acts in the previous decade. This process began at the 1929 Alaska Native

Brotherhood Convention when Territorial Delegate James Wickersham spoke to ANB members about pursuing the legislation. As demonstrated by scholar Juliana Hu Pegues and discussed in more detail in Chapter 2, Wickersham was a profoundly controversial and problematic individual deeply involved with the racialized and gendered violences of settler colonialism and nation-state building, having participated in a leading role as a member of the “Committee of Fifteen” who had violently driven Chinese laborers from the city of Tacoma, Washington.11 Wickersham served as Alaska’s District Judge from

1900-1908 and then was elected as Alaska’s Territorial Delegate, a position he held from

1909-1917 and again from 1931-1933. He and William Paul Sr. had formed somewhat of a friendship, political alliance, and legal partnership and when Wickersham came to present his plan for Tlingit and Haida land claims to the 1929 ANB convention it was with the understanding that he and Paul would serve as the attorneys who would prosecute the claims suit.12 At Wickersham (and Paul’s) urging, the ANB passed a resolution at the end of their convention that laid out a number of grievances for which they sought redress. They accused the federal government of locking up the forests, taking their fishing streams and enacting stringent regulations that made it impossible for them to make a living, and they resolved that Congress delegate a committee to investigate their claims.13

While Wickersham’s motives are questionable, his and Paul’s strategy to achieve passage of a jurisdictional act for the Tlingit and Haida reveals how they sought to

11 Hu Pegues, “Interrogating Intimacies” 12 ANB Minutes Convention November 18, 1929, Judson Brown Papers, Sealaska William Paul Sr. Archives and Special Collections, Juneau. 13 72nd Cong., 1st. Sess., Hearing Before the Committee on Indian Affairs, on S. 1196. 151

position the legal status of Alaska Natives as congruent with that of American Indians in the contiguous states. Hearings for this early attempt (S. 1196) also demonstrate the ways in which lawmakers sought to maintain Alaska Natives as outside the purview of policies that had been applied to Indians of the contiguous states through discourses of race and citizenship that they claimed undermined Alaska Native claims to collective land ownership and sovereignty that the recognition of Indian status could imply. In this regard, the way the federal government constructed the relationship between wardship and citizenship weighed heavily in these hearings, and Paul and Wickersham were likely aware of the delicate balance required to render Alaska Natives legible as “wards” in the sense that the federal government had a requirement to safeguard their property rights, but to do so without jeopardizing their ability to exercise the rights of ownership over their lands as independent citizens of the U.S. The basis on which Paul sought to establish an alternative was his insistence that tribal recognition and organization within federal Indian law as it had developed in the contiguous states did not translate to the

Alaska situation. By making this case, he argued through Wickersham in the hearings for the Jurisdictional Act and in subsequent legal actions that some elements of federal

Indian law and policy apply to Alaska Natives, while others do not. With these maneuvers, he pursued and sustained a new legal space within the settler imperial legal formation.

The bulk of Wickersham’s testimony was to refute a report from Commissioner of

Indian Affairs, C. H. Rhoads, who upon reviewing the bill had drawn a number of telling conclusions. First, Rhoads contended that “for a long time after the cession of this territory [Alaska] Congress took no particular notice of these natives” and “never

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undertook to hamper their individual movements, confine them to a locality or reservation, or to place them under the immediate control of its officers, as has been the case with the American Indians.” He continued that “in the earlier days it was held by the courts and the Attorney General that these natives did not bear the same relation to our

Government in any respect that was borne by the American Indians” and that only later some level of “guardianship” was extended to them in the form of education and health services and the extension of homestead land laws to secure the “possession of the lands they occupied.”14 Additionally, he argued that while “heretofore on a number of occasions Congress has authorized the bringing of suits in the Court of Claims on behalf of Indians inhabiting various States of the United States, the subject matter of S. 1196 with respect to Alaska is without precedent.”15 His reasoning was that, for example, the jurisdictional act for the Indians of California had been based in treaty negotiations in

1851 and 1852. The treaties were never ratified, thus Congress found that because the

Indians of California were in possession of large portions of land at the time the negotiations took place and because the treaties never came to be, the Indians had never been compensated for the taking of their lands. For these two reasons, Commissioner

Rhoads concluded that S. 1196 would allow for the prosecution of claims “without foundation in law of fact” because 1) there had been no legal taking in accordance with the Treaty of Cession through which all lands in the territory came into the possession of the United States, 2) the federal government since that time had never deliberately removed Tlingit and Haida from lands they actually occupied, and 3) no treaty negotiations or any other negotiation similar to that which had taken place numerous

14 Ibid., 15. 15 Ibid. 153

times between the federal government and American Indians had been conducted that might have recognized collective ownership, the taking of which would have been compensable at a later date.

Commissioner Rhoads clearly saw legal distinctions between American Indians and

Alaska Natives, and deployed those distinctions in the continued non-recognition of

Alaska Native nationhood, sovereignty, and land rights. This is the fundamental function of settler imperialism whereby early framings of the territory ceded from Russia as alternately a settler colonial or imperial space came to be expressed in distinctions in the relationship of Alaska Natives to the federal government. These distinctions, in particular, made it possible for federal officials like Rhoads to disavow the long history of dispossession in the territory—if land rights and sovereignty had never been formally recognized, then they could not be taken away. This disavowal of dispossession constituted one of the primary tensions within the gaps in the larger fabric of settler imperial governance in Alaska.

Wickersham opened his testimony by referring to the opinion of Commissioner

Rhoads, stating that while the Commissioner’s opinion was not necessarily adverse, it was incorrect, as there was ample evidence to demonstrate that “the situation in Alaska is exactly the same as it is in the United States with respect to bills of this kind.”16 Much of his testimony thereafter focused on settling the “doubt in people’s minds what the Indian is in Alaska.” He began by citing an act of the territorial legislature that, mirroring the objectives of the Trade and Intercourse Acts discussed in Chapter One, forbid the sale

“any spirituous, malt, or vinous liquor” to any Indian, which the act also defined as “the aboriginal races inhabiting Alaska…and their descendants of the whole or half blood,

16 Ibid. 3-4. 154

who have not become citizens of the United States.”17 To Wickersham, this statute that applied the term “Indians” to Alaska Natives, had settled the question, and he concluded that “there is apparently no such difference in any tribes between North America and

South America, when discovered, that they could be taken out of the general category of

Indians.”

Furthermore, he argued that the language of the Treaty of Cession with Russia by which the Alaska Territory was acquired was identical to the language in the treaties by which the United States acquired “Louisiana, and by which we secured the Mexican provinces after the Mexican War.” Thus, “the Alaskan Indians at that time came in with the same assurance of citizenship in the United States as those in the Louisiana and

Mexican purchases, and the uncivilized Indians came in with the assurance they would be treated exactly as the Indian tribes in the United States are.” He then argued that while

Alaska Natives had not been removed to reservations, the commercial fisheries had, in the absence of any recognition of Alaska Native land rights, come to the territory from

San Francisco and year after year depleted the fish resources such that Tlingit and Haida fishermen had been forced into destitution. He contended that this dispossession was

“now just the same situation you would have if you had taken over the Sioux country, or the lands of any other Indians, and elbowed them out without paying them a cent.”18

He then entered into the record the opinion of E.C. Finney, Solicitor for the

Department of the Interior that seemed to state definitively that Alaska Natives occupied the same legal status as Indians in the contiguous states on account of the federal government assuming a wardship relationship over them. Finney cited a number of

17 Ibid. (35 Stat. L. 603). 18 Ibid. pp. 5-7. 155

statutes and court cases that he argued had established “that these natives are now unquestionably considered and treated as being under the guardianship and protection of the Federal Government, at least to such an extent as to bring them within the spirit, if not within the exact letter, of the laws relative to American Indians.”19 This particular bill was not passed, however Wickersham’s maneuver was fundamental in terms of revealing the malleability of the law with regard to the legal status of Alaska Natives. If we examine the evidence Finney presented in his letter that Wickersham then introduced into the record for the hearings on the Jurisdictional Act, we can see that none of the statutes or court cases effectively reconciled the legal status of Alaska Natives, and Finney’s allusion to the “spirit” if not “the exact letter” was therefore extremely telling. In arguing that Alaska Natives occupy the same legal status as American Indians he first cited the prohibition against selling liquor to Indians in Alaska, however we have seen in Chapter

One how selectively those provisions –associated with the legal definition of “Indian

Country”—were first applied to the territory, and that subsequently the courts found that

Alaska was not “Indian Country” in any other sense but those provisions. Thus, Alaska

Natives were considered to be not legally equitable with American Indians because of these limitations on the application of the Trade and Intercourse Acts. He also cited the

Indian Citizenship Act of 1924 as applicable to the Indians of Alaska just as it was to the

Indians of the states, however as we will see in Chapter Five, the citizenship status of

Alaska Natives was deployed in opposition to their ever having occupied a similar legal status to American Indians. Indeed, attorneys for commercial fisheries and federal lawmakers alike would argue in the 1940s that Alaska Natives had never been treated as tribes but that they had been made citizens instead.

19 Opinion of E.C. Finney, Solicitor, entered into evidence in 1196 hearings, 17. 156

Finney then cited the Sah Quah decision in his argument that Alaska Natives were legally similar to American Indians. However, as discussed in Chapter One, the logic deployed by the judge in this decision was based on the distinctions he and others had constructed between American Indians and Alaska Natives. The judge in the case argued that because the United States had “at no time recognized any tribal independence or relations among these Indians, has never treated with them in any capacity,” and that they were not citizens, the federal government instead considered them “dependent subjects.”

The operative phrase here is “dependent subjects,” which Finney perhaps assumed was akin to “dependent nations.” However, the justice in the Sah Quah case clearly meant

“dependent subjects” to mean a legal status not associated with citizenship (per the

Treaty of Cession and discourses of civilization) nor with nationhood, which had through treaty making characterized the relationship between the U.S. and Native nations of the contiguous states. The justice used “dependent subjects” to subject Alaska Natives to the jurisdiction (in this case the 13th Amendment) of the U.S. in matters between or against one Indian and another—a status clearly apart from Native Nations characterized at the time by the legal construction of “Indian Country.” Finney also listed numerous acts and appropriations for schools in Alaska, to be established and administered under the

Department of the Interior Bureau of Education, which he concluded had determined that

“the Indians and other natives of Alaska are as truly the wards of the Nation as are the aborigines and their descendants inhabiting the States.” However, Finney was obviously omitting the fact that the very reason that the BOE administered Alaska Native affairs in the first place was because the Bureau of Indian Affairs considered Alaska Natives outside its jurisdiction.

157

Finney’s opinion continued, referencing a number of statutes in which the federal government had attempted to reconcile Alaska Natives within federal Indian law such as the 1906 act “authorizing the Secretary of the Interior to allot homesteads to the Natives of Alaska” in much the same spirit as the 1887 Dawes Act along with the short history of the creation of “Indian reservations as well as reservations for other public purposes.”

However, like all his examples, Finney ignored or failed to perceive the fundamental disjuncture between how these acts originated and how they were applied. On the one hand, the Dawes act and reservation policy stemmed in part from the recognition of

American Indian collective sovereignty and nationhood grounded in land ownership— even as these policies sought to destroy that sovereignty. On the other, theses policies as they were extended to Alaska originated from assumptions that Alaska Natives did not constitute nations and where therefore inherently different while at the same time perhaps treated in the same “spirit” if not “letter” of the law.

The hearings concluded, and no action was taken on the bill itself. While

Wickersham, Finney, and Commissioner of Indian Affairs Rhoads differed on their opinions regarding the legal status of Alaska Natives, it is important to note the flexibility that the bill itself originally contained—itself a reflection of settler imperial ambiguities.

In determining the nature of the claims that could be pursued, section 2 gave the Court of

Claims jurisdiction to hear “all claims of whatsoever nature, legal or equitable, which the said Tlingit and Haida Indians of Alaska may have or claim to have against the United

States for lands or other tribal, community, or individual property rights.” The language in most of the clause is typical, except the right to pursue “individual” property rights.

The clause allowing for the pursuit of individual property rights was frequently a target of

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lawmakers, and stricken out in the final iteration of the legislation after Interior Secretary

Harold Ickes warned shortly before passage in 1935 that “the bill, as drawn, is wide open…[and] provides for the adjudication of individual property rights.”20

The Department of Justice had issued an even firmer warning against this language in the bill the year before, stating that as written, “the bill goes further” than allowing the

Tlingit and Haida to pursue tribal claims, and “authoriz[ed] not only suits by the tribes for tribal property but suits by individuals of the tribes for the taking of individually owned property. This is something which has never been done heretofore and would establish a bad and dangerous precedent.” The letter continued, “the policy of the Congress heretofore has been to submit only tribal claims to the Court of Claims for adjudication” and that “this bill opens the door of that court” for individuals of other tribes to petition for similar treatment.21

And Paul didn’t stop there. In the years in which Congress considered the legislation

(1932-35), Paul lobbied Territorial Delegate Anthony Dimond to keep the legislation as flexible as possible so as not to foreclose the possibilities for future litigation, especially in terms of the selection of attorneys to prosecute the claim. Admittedly, Paul’s motives for ensuring that Tlingit and Haida claimants could select their own lawyers was undoubtedly personal as he himself along with James Wickersham sought to prosecute the cases. However, his logic as to why they should be able to select their own lawyers reveals more broadly his thinking in terms of where Alaska Natives did or did not fit within existing frameworks of Indian law. After the passage of the Jurisdictional Act in

20 Harold Ickes to Will Rogers, Chairman Committee on Indian Affairs, House of Representatives, March 8, 1935, Dimond, Box 4 File 49, Elmer E. Rasmuson Library, Alaska and Polar Regions Collections and Archives, Fairbanks, Alaska. 21 George T. Storming, DOJ, March 13, 1934, Anthony Dimond Papers, Box 4, File 49 Elmer E. Rasmuson Library, Alaska and Polar Regions Collections and Archives, Fairbanks, Alaska. 159

1935, and as the Tlingit and Haida were organizing to prepare their suit, Paul began to articulate much more forcefully the distinctions between the social, political, and economic organization of the Tlingit and Haida and how American Indian tribes were legally recognized/constituted in the contiguous states. More importantly, his writing on the subject reveals that he perceived what was in play and what was at stake within these tensions.

In 1934 as versions of the bill were being debated in both the House of

Representatives and in the Senate, Territorial Delegate Anthony Dimond sought out

William Paul Sr.’s opinion on the bill’s language. Paul objected most forcefully on the issue of the selection of attorneys, as section 3 of the bills under consideration stipulated that the authority of the attorneys to prosecute the claims “shall be in accordance with section 81, title 25 US Code,” which required contracts and agreements with Indian tribes be approved by the Secretary of the Interior.22 He argued that the amendment “was designed for non-citizen Indians” and that “Alaska Indians are fully competent to represent their own interests without the intervention of the Sec. of the Interior.”

Furthermore, he stated that because “we have no tribal organizations whatever no headmen or chiefs” and “to insist upon this amendment will mean that each Indian must travel to Juneau or Ketchikan and appear personally before the judge of the district court.”23 The final bill maintained its requirement for Interior Department approval of attorney contracts, but included a provision by which a Tlingit and Haida central council would be created to act as the authoritative vehicle for pursuing collective claims. While the logistics of prosecuting the claims case was important, perhaps another driving force

22 William Paul Sr. to Anthony Dimond, November 1, 1934, Anthony Dimond Papers, Box 4, File 49, Elmer E. Rasmuson Library, Alaska and Polar Regions Collections and Archives, Fairbanks, Alaska. 23 Ibid. 160

behind Paul’s objection to Interior Department approval of attorneys resided in his suspicion of the legal implications of wardship.

“The word ‘ward’ is a curious word”24: Claiming Likeness and Maintaining Difference

After Congress passed the Tlingit and Haida Jurisdictional Act and the President signed it into law in 1935, Paul set immediately to the task of amending the attorney contract clause on account that it implied a ward-guardian relationship and threatened to undermine Tlingit and Haida self-determination. He did this through elaborations on his position regarding Tlingit and Haida legal status in an undated document titled

“Attorneys for Alaska Indians” and in a lengthy overview of Tlingit and Haida legal status presented in “Historical and Legal Materials Relative to the Tlingit and Haida

Claims Act of 1935” which he issued in 1939.25 His writing in “Attorneys for Alaska

Natives” demonstrates how Paul navigated the relationship of citizenship, wardship, and property ownership and the implications those legal institutions might have for Alaska

Natives as they brought forth their collective land claims. It also reveals his understanding that the federal government and white settlers had benefited from the uncertainty they had generated surrounding the legal status of Alaska Natives in the decades since the 1867 purchase.

In “Attorneys for Alaska Indians,” Paul warned that the “jurisdiction of the

Department of the Interior … is expanding its federal authority … through the Office of

Indian Affairs’ asserted administrative control over Indians as wards.”26 He argued that

24 William L. Paul, Sr. to Victor Haldane, January 11, 1950, Accession No. 1885-7, Box 4, File 7, William L. Paul Sr. papers, University of Washington Special Collections, Seattle, Washington. 25 It is not entirely clear from the record what became of these manuscripts. I suspect he distributed them to other attorneys such as James Curry and/or presented them at ANB meetings, and perhaps sent them to Anthony Dimond or other members of Congress. 26 Paul, “Attorneys for Alaska Indians.” 161

this had been possible because “of the fact that the attributes of the doctrine of sui generis have never been accurately defined by the courts” and that “the boundaries of guardianship have varied from decade to decade” and “are used loosely and vaguely.”27

The problem, he argued, of this vague “wardship” status and the authority that it potentially granted to the Interior Department and BIA, was that it had become expressed in the attorney contract clause of the recently passed Jurisdictional Act, and as such was a dangerous infringement on the rights of Tlingit and Haida. He made his case against the clause by contending that Alaska Natives occupied a distinct legal status as compared to

Indians of the continent, and that in fact, the Jurisdictional Act itself embodied those distinctions as it was “much broader than any of some 50 similar statutes enacted for the

Continental Indians.”

Armed with what to him were important distinctions, Paul wove a careful pattern in which those differences supported his resistance to designation of Alaska Natives as wards, but not to the extent that their collective claims to land and self-determination could be undermined. To Paul, Indians in Alaska occupied a “unique factual position” and that “since the occupation of the United States” neither the Tlingit or Haida had

“been recognized or dealt with as a tribe … and that no treaties or agreements have ever existed” between them and the federal government. Tlingit and Haida social and political organization was characterized by a division into “two phratries— (1) Eagle or Wolf, and

(2) Raven” which were further divided into clans and houses. However, he contended that in 1867 U.S. officials encountered the Tlingit and Haida in their “17 geographical divisions or villages” and subsequently misidentified or misattributed designations of actual Tlingit and Haida social, political, and economic units by referring to the villages

27 Ibid. 162

as tribes.28 Nevertheless, without formal tribal designations, treaties, or nation-to-nation negotiations, Tlingit and Haida had (as discussed above) utilized the language the 1887

Dawes Act to assert citizenship rights, after which Paul contends they have always “paid municipal, territorial, and federal taxes in common with white citizens,” their children attended white schools, and liquor restrictions had been negated.” Additionally, when

Alaska Natives had pursued the recognition of their townsite lands, they were free to choose their own attorneys, and Indian land was not restricted as it was in the continental

U.S. In spite of this, the attorney contract clause in the Jurisdictional Act constituted the

Interior Department’s attempt to implement “a retrogression down to wardship” that would impinge upon “recognition of the Indians’ civil liberties.”29

While leveraging distinctions in the way Alaska Natives had in many ways been illegible in terms of federal Indian policy, Paul’s closing remarks reveal his perception of how productive these distinctions and the tensions that sustained them could be and warned that should the federal government choose to recognize Alaska Natives as occupying an identical legal status to American Indians, white settlers in Alaska would be in for a shock. He wrote that “many white people would like to see such control” [as reflected in increasing Interior Department authority] “without realizing that if these

Indians are indeed wards of the government, then it must follow that a suit by their representatives would lie for the recovery of all real property sold by them—as a ward has no power to alienate his land and the statute of limitations does not run against these wards’ guardian, the United States. When the issue is squarely presented, it will be very

28 Ibid. 29 Ibid. 163

interesting!”30 Thus, Paul understood that all land transactions that had occurred without federal approval could be subject to reversal if white settlers and territorial officials insisted on an identical status of Alaska Natives with American Indians in terms of the legal definition of wardship. He also knew that the refusal of Indian status for Alaska

Natives had opened up a space in which he and other Alaska Native activists could craft their own settlements and define their relationship to the federal government on terms that were more suited to their objectives.

Paul continued his assessment of the Alaska Native legal situation in “Historical and

Legal Materials Relative to the Tlingit and Haida Claims Act of 1935.” In his opening pages, he again referred to what he understood to be at stake in the federal government’s refusal to sign treaties with Alaska Natives or to otherwise recognize collective rights in the land. He mused that “no written treaties or agreements were ever negotiated between the United States and the Alaska Indian tribes, the general reason probably being that the monopolistic Alaska Commercial Company effectively lobbied in Congress to prevent the establishment of a government in Alaska for almost 30 years.”31 Paul’s accusations expose how commercial interests were savvy to the fact that without a nation-to-nation relationship between Alaska Natives and the federal government along with the lack of a formal territorial government in Alaska, the resources in the territory were, in the minds of commercial agents and territorial officials, available for the taking. Particularly important is the issue of Alaska’s fisheries. In later statehood debates (discussed in chapter 6) one of the most forceful protests against Alaska statehood came from the behemoth commercial fishing industry. This was because once Alaska became a state,

30 Ibid. 31 William Paul Sr., “Historical and Legal Materials Relative to the Tlingit and Haida Claims Act of 1935,” William Paul Sr. Papers, [accession, box file, 164

regulation of the fisheries would come under state control instead of federal control.

Interestingly, territories typically were granted control over fisheries. Though as Paul suggested, the powerful fishing industry in Alaska had lobbied to prevent that transfer knowing full well that should it occur, the territory of Alaska would likely prohibit the use of fish traps which had been fundamental to commercial fishing success in Alaska but had devastated Alaska Native fishing economies. The maintenance of Alaska Native legal status as “uncertain” in the minds of territorial and federal officials along with the vague status of the territory itself had not only worked in tandem to allow the dispossession of

Alaska Natives through resources extraction but had actually been a strategy pursued by the commercial fishing industry.

Understanding how these tensions were at play, Paul perceived the vulnerabilities they posed. In the pages that followed, he carefully made use of the way this history had made distinctions between the rights of Alaska Natives in comparison with those of

American Indians while at the same time suturing together elements of federal Indian law that supported Alaska Native collective land rights. He first invoked the Doctrine of

Discovery and argued that the Russians had adhered to its principles of recognizing

Indian communal rights of occupancy and that the United States had not purchased actual property, but merely the preemptive right to buy. He then referred to the ways in subsequent law dealing with Alaska, this collective right was omitted, the Treaty itself only recognizing “private individual property” as exempt from any real property that was included in the transfer. Furthermore, section 12 of the subsequent 1884 Organic Act

“provides that the Secretary of the Interior shall report, inter alia, what lands, if any, shall be reserved for the use of the Indians.” However, “no reference has been noticed in the

165

government reports.”32 Paul contended that because there had been no official legislation stating otherwise, the Doctrine of Discovery still applied and that despite the lack of formal recognition, subsequent acts of Congress had actually constituted a “back-handed recognition of Indian land rights.”33 He recognized that legislation which mentioned

Indian land rights in Alaska, when it did so at all, was rather “feeble,” and resolved little.

While this flexible, feeble, vague language had proven productive for territorial and federal officials and commercial interests, Paul saw an opportunity to sculpt Indian policy in ways he saw fit. He focused on the Doctrine of Discovery as articulated by Chief

Justice Marshall in the landmark case Johnson v. McIntosh and the long history of Indian affairs in the contiguous states, which he contended supported Alaska Native collective land rights, especially Strother v Lucas.34 In Strother, a case arising out of the validity of land transfers that had occurred in what is now Missouri when the territory had been under French, then Spanish, and then French authority, subsequently ceded to the U.S. through purchase. The Supreme Court found that the Treaty of 1803 had transferred the territory with the expectation that the new sovereign (the U.S.) would be “subject to their concomitant obligations to the inhabitants” and that “both were regulated by the law of nations, according to which the rights of property are protected, even in the case of a conquered country, and held sacred and inviolable.”35 He then argued that while Strother differed from “the Tlingit situation in that written grants of land were involved,” the similarities should not be ignored.

32 Ibid. 20 33 Ibid. He is making specific reference to the 1891 creation of the Metlakatla Indian reservation and the clause that states that the provisions in the act creating the reservation shall not “be construed to warrant the sale of any lands….to which the natives of Alaska have prior rights by virtue of actual occupation.” 34 For the Doctrine of Discovery and the Marshall decisions, see Wilkins and Lomawaima, Uneven Ground and Heidi Kiiwetinepinesiik Stark, “Transforming the Trickster.” 35 Ibid. 41 166

Paul used Strother to draw Alaska Native land rights into the sphere of Indian law.

Like Louisiana, “the Alaska Territories were occupied by Indians claiming property rights” and “Both France and Russia subscribed to the Doctrine of Discovery and recognized such property rights.” Despite the fact that when “the United States purchased both Territories…the French cession stipulated protection…[and] the Russian cession stipulated nothing” he concluded that the breadth of Strother was such that the Russian treaty’s silence on protection was “inconsequential.”36 Asserting rights to collective claims to the land, he concluded that Alaska Natives should be protected in the same rights of occupancy as had Indians of the continental United States.

The Doctrine of Discovery is where Paul drew the line, and he moved on to “let us determine the limits of the power of administration exercisable by the government” and its charge that Alaska Indians were “wards of the United States.”37 He again turned to

Chief Justice Marshall’s decisions in the Marshall trilogy in which Marshall had deployed the language of wardship by describing Indian tribes as possessing “an attribute of nationality…domestic dependent nations” and “wards [in] a state of pupilage.”38

Because of these designations that Marshall had attributed to tribes with which the United

States had treated, Paul concluded that Alaska Natives had not been made wards at any time since the Treaty of 1867. He further surveyed a number of cases, which indicated to him that “guardianship remains while the tribal relation continues—while a dependent

36 Ibid. 41 37 Ibid.50 38 Ibid. Paul citing Hoff v Burney and Cherokee Nation v Georgia. See also, Wilkins and Lomawaima, Uneven Ground; Heidi Kiiwetinepinesiik Stark, “Transforming the Trickster;” David Wilkins, American Indian Sovereignty and the Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997); Vine Deloria Jr. and Clifford M. Little, American Indians, American Justice (Austin: University of Texas Press, 1983). 167

nation exists.”39 Paul understood that U.S. judges, lawyers, and lawmakers had tied indigenous nationhood to concepts of “dependency” and “wardship,” and by arguing for distinctions among Alaska Native governance and citizenship, he saw an opportunity to wedge open new legal spaces while suturing others together in the way that Indian law had been configured. He pursued these ends in his lobbying for the 1935 Jurisdictional

Act, and he also leveraged these tensions in the ways Indian policy, particularly the

Indian Reorganization Act, would come to Alaska.

“A common bond of association”: Paul Sr. and the Indian Reorganization Act in Alaska

In 1934 Congress enacted the Wheeler-Howard Act, commonly referred to as the

Indian Reorganization Act (IRA). Reflecting a shift in Indian policy away from the allotment era, the IRA sought to encourage American Indian tribes in the United States to use reservations as homelands for purposes of economic development and self- determination. Largely the product of Commissioner of Indian Affairs John Collier, the

IRA aimed to “conserve and develop Indian lands and resources” through the restoration of remaining Indian lands that had theretofore been opened by Presidential proclamation

(allotment), preventing further alienation of Indian lands, and the extension of loans and credit systems that tribes could utilize in pursuit of economic development. The Act stipulated that, while not generally applying to the territories, Sections 9, 10, 11, 12, and

16 “shall apply to Alaska.” Sections 9-12 included the provisions by which tribes could secure funds to assist in the organizing of Indian chartered corporations that could participate in the revolving credit fund, loans for “tuition and other expenses” in vocational and trade schools, and the appointment of Indians to positions in the Indian

39 Ibid. 66 168

office to assist “in the administrations functions or services affecting any Indian tribe.”40

Section 16 stated that “any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare,” and after adopting a constitution and bylaws, ratified by the tribe and approved by the Secretary of the Interior, could receive a charter of incorporation by which they could exercise the provisions of the act.41

However, the requirement of a tribal organization and a reservation prevented these provisions from being applicable to Alaska. It is also important to note that Alaska

Natives were not included in any provisions regarding Indian lands. Some scholars attribute this to an “unintentional error in drafting,” however the consequences were such that Alaska Natives were included in a seminal piece of Indian policy legislation only to the extent that they could secure credit and loans for education and economic purposes if they were tribes residing on a reservation and had secured a charter of incorporation.42

Their exclusion from the provisions from Section 17 prevented Alaska Natives from securing charters of incorporation for the purposes of the act. William Paul Sr. assisted in drafting amendments to the IRA that, when approved by Congress and enacted into law in 1936, were called the Alaska Reorganization Act. The language of the amendments regarding how Alaska Natives might organize for purposes of the IRA in addition to

Paul’s advancement of his legal strategies in the following decades demonstrate the expansive nature of his thinking with regard to the legal status of Alaska Natives and the

40 Wheeler-Howard Act, 48 Stat. 984. See also, Kenneth R. Philp, “The New Deal and Alaska Natives, 1936-1945,” in An Alaska Anthology: Interpreting the Past, ed. Steven W. Haycox and Mary Childers Mangusso (Seattle: University of Washington Press, 1996); Frederick E. Hoxie, This Indian Country; Vine Deloria, Jr., ed., The Indian Reorganization Act: Congresses and Bills (Norman: University of Oklahoma Press, 2002); Graham D. Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act (Lincoln: University of Nebraska Press, 1980). 41 Ibid. 42 Case and Voluck, Alaska Natives and American Laws, 98-99. 169

ways they could leverage the “uncertainty” that territorial and federal officials had determined surrounded their rights to land, self-determination, and resources.

William Paul Sr. along with Interior Solicitor Felix Cohen and Interior Secretary

Harold Ickes and other federal officials sought to amend the IRA shortly after its passage to extend additional sections of the bill to Alaska and to account for land claims by allowing the Interior Secretary to designate areas as Indian Reservations. In a memorandum to the Commissioner of Indian Affairs John Collier, Paul, Cohen, and Paul

Gordon suggested important language for the amendments regarding the ways in which

Alaska Natives could organize for recognition and a charter of incorporation. They contended “because of the fact that there are apparently no recognized Indian reservations, tribes, or bands in Alaska (except for the Annette Islands Reservation), it would be undesirable” to apply the IRA to Alaska with the requirement that

“organization be restricted to the Indians of a single tribe, band, or reservation.”43 Rather, they suggested that Alaska Native organization ought to be able to reflect actual conditions in Alaska and they proposed the following language, which they appropriated from the Federal Credit Union Act of 1934:

Provided, That groups of Indians in Alaska not heretofore recognized as bands or tribes, but having a common bond of occupation, or association, or residence within a well defined neighborhood, community, or rural district, may organize to adopt constitutions and bylaws and to receive charters of incorporation and Federal loans under sections 16, 17, and 10 of the Act of June 18, 1934 (48 Stat. 984).

The bill, when it passed, included this suggestion in section 2 in addition to providing the Secretary of the Interior the authority to create Indian reservations for

43 Paul, Cohen, Gordon to Commissioner of Indian Affairs, January 22, 1936, Anthony Dimond Papers, Series 3, Box 1, Folder 10, Alaska and Polar Regions Collections and Archives, Elmer E. Rasmuson Library, Fairbanks, Alaska. 170

Alaska Native groups who had organized under its provisions. Dozens of Alaska Natives did so in the late 1930s and 1940s (discussed in chapter 5) but what is important here is

Paul’s understanding/vision for what could be accomplished through the IRA in Alaska.

The language that he, Cohen, and Gordon, had suggested and that was ultimately incorporated into the bill is arguably flexible, potentially allowing for a variety of ways that groups of Alaska Natives could take advantage of the credit provisions of the act and make claims to their land and resources. It also adheres to Paul’s continuous arguments that “tribe” as understood by federal officials was not an organizational unit that mapped on to Alaska Native political, economic, and social structure.44

Paul’s writings reveal the expansive nature with which he understood the IRA amendments and the ways in which Alaska Native villages and groups could organize under its provisions. Shortly after its passage, a number of southeast Alaska villages drafted constitutions and sought the necessary approval from the Interior Department including the villages of Wrangell, Sitka, Ketchikan, Hydaburg, Angoon, Kasaan, and

Klawock. Each village pursued a particular structure of organization based on its own needs and circumstances; for example, the village of Hydaburg sought to create a voluntary economic corporation because it was already a municipality under the territorial laws of Alaska and the organized Native people of Hydaburg, not wanting to attempt to superimpose an IRA over a city, opted for an economic association that could secure credit from the IRA provisions. This arrangement would allow them to resume control over the village cannery from commercial interests and develop their resources on

44 Again, not that federal legislation reflected the complexity of social, political, and economic relationships of tribes in the contiguous states, but rather how Paul’s arguments played on the assumptions of territorial and federal officials about how tribal organization was constituted in the states and how that in turn did or did not apply to the Alaska situation. 171

their own terms. Kasaan, on the other hand, sought municipal incorporation that would require designated boundaries with fixed territorial jurisdiction.45

In a letter to Interior Secretary Harold Ickes in September of 1937, Paul voiced his frustrations at the Indian Organization Department for its inability to understand the

Alaska situation and its misconceptions “of both law and fact” regarding how Alaska

Natives could organize under the amendments to the IRA. Particularly here, we can see how Paul understood the IRA amendments as setting up a multitude of ways that Alaska

Natives could assume ownership and management of land and resources without reservations. While he and other Alaska Natives understood reservations as one of many tools available to them, his suspicions surrounding wardship and the increasing authority of the Interior Department also led him to pursue land ownership through other means.

Paul’s letter reveals both the contentious nature of the relationship of land to the IRA amendments and the ways in which Paul and others understood the flexibility within the amendments as allowing them to make strategic claims to resources and economic self- determination. Particularly in the case of Kasaan, the Organization Department had delayed approval of their constitution on the grounds that the village need not have designated territorial boundaries set by the organization process because the new village corporation could assume the boundaries that had already existed under territorial law.

Paul argued that this village, unlike Hydaburg, did not already have municipal powers or recognition under territorial law, and therefore should be entitled to have territorial jurisdictional boundaries set in the constitution it had adopted. While the second part of the IRA amendments allowing the Interior Secretary to designate land as Indian

45 William Paul Sr. to Harold Ickes, September 21, 1937, William Paul Sr. Papers, Accession No. 1885-7, Box 4, File 22, University of Washington Special Collections, Seattle, Washington. 172

reservations for the newly formed corporations could have accomplished this, Paul perhaps sought a way to secure land and resource ownership without the restrictions that could accompany the designation of Alaska Native land as Indian reservations. Paul argued that setting territorial boundaries in the constitutional approval process was the best way “to bring economic betterment” to Kasaan by “giving them a fair chance at the material wealth that surrounds them and that was once their very own.”46 Thus Paul interpreted the IRA amendments as allowing Alaska Natives a multitude of strategies for making claims to land, resources, and economic sovereignty.

Perhaps more striking is Paul’s interpretation of what kinds of Alaska Native groups could organize and what kinds of “common bonds of association” could be legally recognized and chartered. In response to the Organization Department’s assertions that there were numerical and other factors that determined what kinds of groups could organize, he referred again to the section of the statute, authored by himself along with

Felix Cohen, that allowed “groups of Indians in Alaska not heretofore recognized as bands or tribes, but having a common bond of occupation, or association, or residence” to organize for the purposes of the IRA.47 He argued that the passage, as written, had answered “in the affirmative the question which I propounded, namely: May selective groups of Indians in Alaska organize?”48 He contended that he and Cohen had “selected this language from section 9 of the Federal Credit Union Act…because this law authorizes selective organizations” and that under that particular statute, “groups of seven persons may organize to the exclusion of all others” provided that

46 Ibid. 47 Ibid. Felix Cohen, Interior Department Solicitor, was the primary architect of the Indian Reorganization Act 48 Ibid. 173

Union membership shall be limited to groups having a common bond of occupation, or association, or to groups within a well-defined neighborhood, community, or rural district.49

Paul, however, argued that the Alaska amendments to the IRA were even more flexible than that, allowing instead of a set number (7 as in the Credit Union Act) a “group,” which according to “Corpus Juris (280.J.879)” meant “a number of persons or things” without specificity. Thus, “no where does the word [group] mean ‘all of a class’ as asserted by the Organization Department.”50

While he recognized the “danger that selective organization without some connecting or underlying foundation might lead to the danger of political selection” he and Cohen agreed that the selective group ought to be “bound by a common bond,’ which he likewise interpreted to be flexible. As evidence he related a conversation he had had at a recent conference in which he had proposed a question of organization to Interior

Solicitor Cohen:

First I drew a circle and divided it into four quarters and inside the circle I drew small circles to represent the towns of Yakutat, Hoonah, Sitka, Klawock, and Hydaburg on the one side and on the other half I drew circles for Haines, Juneau, Wrangell, and Ketchikan, each occupying its relative position. Then I said, “Suppose two Indians from each of these towns separated as they are by six hundred miles, all engaged in their common occupation of fishing, wish to form one voluntary association under the Wheeler-Howard Act, could this be done under the Alaska Act?” His [Cohen’s] answer was “yes”—a most sensible answer. Any other answer would be subversive of the law and would make organization well nigh impossible to certain groups.

In response to restrictions on organization that the Department sought to impose on the proposed constitutions for the above listed villages, he contended that

These people are held by a common bond of association based on a common language, legends, custom, clan system, totemic system, house system, membership in fraternal societies, religious societies, schools, and by residence. The ramifications are endless and

49 Ibid. Paul quoting section 9 Act of June 26, 1934, 48 Stat. 1216, 12 U.S.C. 1759. 50 Ibid. 174

are of such a nature that by careful selection an organizer could accomplish any given purpose. (emphasis added)

Paul had sought out this particular language because, to him, it could most effectively capture the multitude of “groups” with “common bonds of association” that already existed in Tlingit and Haida society. To prove his point he challenged the Department, asking pointedly “would the government rather base the common bond of association on the clan system that runs its continuous line thru every village?

Would you allow a group having the Frog as their emblem to organize? Or the Beaver? Or the Dog-salmon? Or the Coho? Or the Whale? Or the Whale-Killer? Or the Grizzly Bear? Or the Dog-fish? Or the Crane? Or the Tunder-bird? Membership in all of which constitutes an actual, existing, determining bond of association. And yet, such a foundation is not exclusive either. Over and above these, we have the Raven and the Wolf (some places called the Eagle) moieties of the Tlingit; among the Haidas, these are more numerous; among the Tsimpshean they are said to number five major divisions. How would your experts follow the clan line where these lines are not highly regarded as among the Na-ah [clan], or where the groupings are in the reverse as among the Haidas so that when you speak of the Raven Clan there, you mean the Eagle, and when you speak of the Eagle, you mean the Raven, and when you would banquet the Eagles, you do so by calling the Raven Clan? […] I could go on almost endlessly, but to what purpose? Merely to show that virtually any (emphasis added) combination is possible and would satisfy the Department’s definition of the word “group” in Alaska if one set out to make the combination.51

To Paul, the language he and Cohen devised for the Alaska Amendments to the IRA, while perhaps not appearing so to government “experts,” was flexible and could be absorbed by and adequately reflect the “common bond[s] of association” that had sustained Tlingit and Haida society since time immemorial while also allowing them to participate as U.S. citizens in the social, political, and economic life of the territory by controlling their own land and resources.

“So fundamentally different from anything here in the states”: Asserting Sovereignty and Tlingit Political Geographies in Tee-hit-ton

51 Ibid. 175

After the extension of the IRA to Alaska in 1934 and the passage of the Tlingit and Haida Jurisdictional Act in 1935, Paul along with a number of Tlingit and Haida villages and organizations in southeast Alaska utilized the new laws in their long running pursuit of the recognition of their land ownership by the federal government. The ways in which they did so and the outcomes of their efforts in the courts and Congress had implications not only for Alaska Natives, but for Indians of the contiguous states as well.

The newly formed Tlingit and Haida Central Council worked with attorney James Curry in building a case for compensation for lands lost under the provisions of the Tlingit and

Haida Jurisdictional Act while many independent villages sought the establishment of reservations to protect their rights to their homelands.52 Both of these strategies were long and protracted; the struggle over reservations, examined further in chapter five, lasted well into the statehood era, and the lawsuit eventually brought collectively as the Tlingit and Haida Indians of Alaska v. United States was not settled until 1959.53 The settlement award was so small that the involved villages opted instead to participate in the Alaska

Native Claims Settlement Act of 1971. Also arising out of the 1930s legislation was a land claims case initiated by Paul Sr. that made its way to the Supreme Court: Tee-hit-ton

Indians v. United States.

Described by legal scholars as “one of the most important Supreme Court Indian rights decisions of the twentieth century” and the case involved Paul’s Tee-hit-ton clan and roughly 350,000 acres of land. The infamous decision, likewise characterized as “one of the most glaring misrepresentations of fact ever uttered by a Supreme Court justice,” the court found in favor of the United States, however further elaborated on the Doctrine

52 Tlingit and Haida Jurisdictional Act 49 Stat. 388. 53 Tlingit and Haida Indians of Alaska v. United States, 147 Ct. Cls. At 386-87. 176

of Discovery by arguing that it was “the conquerors’ will” and not nation-to-nation negotiations for land cessions that deprived Native people of their ancestral homelands.54

Chapter six examines the settler imperial nature of Tee-hit-ton in relation to the debates over statehood for Alaska and the legal relationship of Alaska Natives to the federal government and the possibility of a new state legal entity. In the end, the decision in the case sustained the very tensions inherent in the 1867 Treaty of Cession and subsequent legislation that had deferred or avoided resolving the legal status of Alaska Natives and their land by relegating the authority to determine such back to Congress. The impetus behind the case, however, further reveals how Paul both perceived and utilized the uncertainties perpetuated by lawmakers and territorial and federal officials. Fellow attorney James Curry, working with the Alaska Native Brotherhood and the Tlingit and

Haida Central Council, perceived the best way to bring suit against the federal government for land claims would be collectively on behalf of all Tlingit and Haida

Indians. Curry likely understood this strategy as the most effective in terms of forcing the federal government to acknowledge a tribal status for Native nations in Alaska.

Paul vehemently disagreed, contending that instead, individual clans—the formal organizational unit by which land is owned in Tlingit law—ought to bring their own suits and that they should do so under the Fifth Amendment in the U.S. Court of Claims.

Attorneys for the Tee-hit-ton, William Paul, Jr. (Paul Sr.’s son) and James Peacock followed Paul Sr.’s reasoning and argued that because “the background—historical, political, et cetera., in Alaska, was so fundamentally different from anything here in the

54 See David Wilkins and Tsianina Lomawaima, Uneven Ground 24, 134; Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis: University of Minnesota Press, 2005); Walter R. Echo-Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided, (Golden: Fulcrum Publishing, 2010). 177

states” that the concept of “Original Indian Title” had no bearing in the territory. Rather,

Paul contended that “aboriginal, full proprietary ownership” of Tlingit Indians had never been impaired and that those property rights were vested in the clan. Furthermore, he contended that there had never been nor was there at the time anything such as a “Tlingit” or “Haida” tribe, but rather the terms referred to people who belonged to those respective language groups. In the years leading up to and throughout the duration of the case and afterward, Paul continuously pursued land ownership and sovereignty on the basis of

Tlingit social and political organization, a strategy in which he again split the gaps that settler imperial tensions had sustained.

Tee-hit-ton originated when, in 1951, the Department of Agriculture sold “all merchantable timber […] on the Prince of Wales Island” under the provisions of the 1947

Tongass Timber Act. Discussed as a piece of settler imperial legislation more thoroughly in chapter five, the Tongass Timber Act was a legislative attempt to bypass any substantive reckoning of Alaska Native land and sovereignty in order to access timber resources. The Act arose from what lawmakers and the President of the United States had termed “a special legal problem…hampering the development of Alaska. This is the question of whether or not Alaska natives have claims to the ownership of certain lands.”55 Rather than making a decision about Native land ownership, the act instead stipulated that profits from the sale of the timber by the federal government would be held in escrow until at a future date Native possessory rights might be determined. Thus, the act functioned to sustain settler imperial ambiguities and uncertainties surrounding

Alaska Native legal status and their land ownership. It was when the federal government

55 President Truman special message to Congress, May 21, 1948, cited in Plaintiff’s Statement under Rule 29(b), Court of Claims, Docket No. 50385, Tee-hit-ton Indians v. United States, William Paul Sr. Papers, Accession No. 1885-7, Box 10, File 25, University of Washington Special Collections, Seattle. 178

sold Tee-Hit-Ton timber that Paul filed his case, seeking recognition of Tlingit sovereignty on the basis of Tlingit social and political organization—a way to test in court the flexible language and structure of the Alaska Reorganization Act and the Tlingit and Haida Jurisdictional Act.

Early on, Paul expressed frustration with Curry and those Tlingit and Haida who elected to pursue their suit collectively as the Tlingit and Haida Tribes of Alaska. He wrote in May 1951 to attorney Peacock (who would eventually become the lawyer to bring Tee-hit-ton) inquiring about the possibility to bring suit on behalf of a group that

“speak the Tlingit language but are more correctly known as the Shgut-quon tribes.” He contended that “our group have always objected to the organization of the [Tlingit and

Haida Indians of Alaska vs. The United States of America] because it is contrary to the facts of our Indian life.”56 He continued that “there is no such thing as Tlingit tribe or a

Haida tribe; they merely show the language division.” Paul understood the word “tribe” as “referring to a governmental unit,” in which case if the federal government elected to use the term to describe Tlingit and Haida Indians, they should ensure that when they do so they are referring to the clan, or the “nah,” rather than assuming that what the federal government referred to as a “tribe” encompassed all Tlingit and Haida speaking peoples.57 He articulated the long-standing continuous sovereignty of each clan, describing how “each was an independent governmental unit and in no way connected with the other. Each owned and exercised dominion over its own country which was well known to all the other tribes in southeastern Alaska, about 35 of them.” As further evidence, he related that when the Tlingit had gone to war with the Russians in 1802 and

56 William Paul, Sr. to J.C. Peacock, May 1, 1951, William Paul Sr. Papers, Accession No. 1885-7, Box 10, File 22, National Archives and Records Administration Pacific Branch, Seattle, Washington. 57 Ibid. 179

1804, it was in fact only the Kiks-uddy clan, though “other tribes were in the vicinity, but they were not parties to the war because only the Kiks-uddy tribe exercised dominion over that area…Our group at Wrangell apparently knew nothing of this trouble and cared less.”58

The Court of Claims partially accepted Paul’s argument for a distinct political organization among Tlingit and Haida Indians by which sovereignty and land were vested in the clan, finding that the Tee-hit-ton were an identifiable group of American Indians residing in Alaska. They however denied the right to bring suit under the Fifth

Amendment due process clause, insisting that Tee-hit-ton land ownership constituted

“original Indian title” or “Indian right of occupancy” and was therefore not entitled to compensation under the Fifth Amendment. Paul and his lawyers appealed the decision all the way to the Supreme Court, who granted certiorari in 1955.

In the Court of Claims, lawyers for the Tee-hit-ton argued that “the background— historical, political, et cetera., in Alaska was so fundamentally different from anything here in the states that that concept [of Original Indian Title] has no application in the present case.” They argued instead, and maintained this position through Tee-hit-ton proceedings, that “the Indians, that this plaintiff’s aboriginal, full proprietary ownership has never been impaired down to the time of the taking herein involved.”59 They contended that their concept of property ownership along with the fact that during

Russian occupation, Russia made no attempt to claim their lands, “takes them out of the

58 Ibid. 59 Testimony for Plaintiff, Tee-hit-ton Indians, an identifiable group of Alaska Indians, Plaintiff, vs. United States, Defendant, Docket No. 50,385, U.S. Court of Claims, March 10, 1952, William Paul Sr. Papers, Accession No. 1885-7, Box 10, File 26, National Archives and Records Administration Pacific Branch, Seattle, Washington. 180

rule applicable to the Indians of the States.”60 Unfortunately for Paul and the Tee-hit-ton clan, the Supreme Court disagreed, stating that contrary to the insistence of the plaintiff, there had been “no distinction between their use of land and that of the Indians of the

Eastern United States” and that “the court had no evidence that the Russian handling of the Indian land problem differed from ours.”61

The implications for Tee-hit-ton are discussed further in chapter six as they became embroiled in the debates over Native land rights and statehood for the territory of

Alaska. What is important to recognize, however, is that the decision was a blow to tribal sovereignty everywhere. The Court’s finding that even land cession negotiations resulting in treaties were not considered a sale and did not concede ownership, but were the result solely of “the conqueror’s will.” Interestingly, while the loss of Tee-hit-ton had important consequences for the continued struggle for Alaska Native land and sovereignty, what

Justice Reed had done in his decision was to leave open the possibility that Alaska Native land loss might be compensable under original Indian title rather than the Fifth

Amendment. In claiming that Alaska Native legal status was no different than that of

Indians of the states, he left open the possibility that the lawsuit brought forth by James

Curry and the Tlingit and Haida Central Council, Tlingit and Haida Indians of Alaska v.

United States, might generate a different decision.

Conclusion

60 Tee-hit-ton v United States, 348 U.S. 272 (1955). For more on Tee-hit-ton see Robert A. Williams, Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis: University of Minnesota Press, 2005); Walter R. Echo-Hawk, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided (Golden: Fulcrum Publishing, 2005); Earl M. Maltz, “Brown and Tee-Hit-Ton,” American Indian Law Review Vol. 29, No. 1 (2004/2005), 75-100. 61 Ibid. 181

In the decades following the Tee-hit-ton decision, villages and groups continued to organize and draft constitutions, petition for reservations, and the Tlingit and Haida continued their land suit against the federal government. These years were characterized by a tremendous amount of energy and enthusiasm, but were also fraught with disagreements between various Native organizations (the ANB, ANS, Tlingit and Haida

Central Council, attorneys) and the federal government over their interpretations of the

Tlingit and Haida Jurisdictional Act, which groups could organize or bring suit, and the best methods for doing so. William Paul Sr. was one voice out of many at the time, and a controversial one at that, though his legal thinking as he assisted in the pursuit of the legislation and court decisions that would render Tlingit social and political organization and interests legible, his strategies reflected his keen understanding of what kinds of legal spaces had opened up because of the federal government’s long history of maintaining uncertainty around the legal status of Alaska Natives and he saw how he could tailor elements of U.S. law to suit Tlingit and Haida objectives. Not everyone agreed with Paul; indeed the 1930s and 1940s were characterized by an increasing amount of factionalism within the ANB/ANS and many thought his strategies dangerous. Nevertheless, his refusal to adhere to the legal definitions the federal government sought to impose on

Alaska Native communities, sovereignty, and self-determination reflect the general spirit with which even those who disagreed with Paul took on the federal government’s claims.

As IRA reservations and Native governments became embroiled in the simultaneously emergent Alaska Native civil rights movement, this refusal to accept non-Native definitions of the relationship of Alaska Natives to the federal government became apparent in the struggle over the meanings of U.S. citizenship for Alaska Natives.

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It also demonstrates, along with Paul’s unwavering efforts to secure the Tlingit and Haida Jurisdictional Act and an extension of the IRA to Alaska that could account for the complexity of Tlingit and Haida social, political, and economic structures, that Paul perceived early on that Alaska Natives were, in many ways, illegible to territorial and federal officials with regard to their legal relationship to the United States. The legal frameworks with which these officials were familiar were not easily mapped on to Alaska because of the tensions between alternate understandings of the territory as a settler colonial “last frontier” and simultaneously as the first experiment in overseas U.S. colonialism.62 As these officials struggled to fill the gap between these two framings,

Paul jumped at the chance and sought to fill it himself.63 In doing so, he and other Native activists exposed the limits that settler imperial tensions—those that sought to maintain the status of Alaska Natives as uncertain so they could commence with settlement and resource extraction without reckoning with Alaska Native sovereignty—had woven into their very structures. What had been perhaps been designed as an advantage for the state, was made instead into a vulnerability that Alaska Native activists used to make their claims on their land, sovereignty, and U.S. citizenship in the decades to come.

62 Not that settler colonial or imperial frameworks easily map onto any colonized indigenous nation—they don’t, and the idea that they do perpetuates the objectives of the settler state—but what matters here is that these officials created distinctions which opened up a space that Paul perceived and worked very hard to fill with legislation and policy that would make the most sense in terms of Tlingit and Haida objectives. 63 Again, not that Paul is the only one to do this, but his extensive writing on his opinions of federal law and the ways it interpreted Alaska Natives provides an important window in to settler imperial tensions and how they play out in actual policy. 183

Chapter Four: “Bound together by a common tragic experience”: “Foreign Indians,” Refugees, and Aleut Internment in Framing Alaska Through “Civilized Settlerism”

On March 3, 1891, the United States Congress passed an act setting aside “the body of lands known as the Annette Islands, situated in Alexander Archipelago in Southeastern

Alaska….as a reservation for the use of the Metlakahtla Indians.”1 Today it is the only

Indian reservation existing in the state of Alaska. The reservation itself and the sovereignty of the Metlakatlans stands in stark contrast to the history of Alaska Native land rights and sovereignty struggles. The reservation has survived numerous assaults from corporate fishing, mining and timber interests and while neighboring Alaska Native communities in southeast Alaska struggled to prevent white settler encroachment on their lands, the Annette Islands comprising the reserve have remained exclusive to the tribe.

What makes this stand-alone reservation even more peculiar is that its Native inhabitants are not indigenous to the island, nor were they indigenous to what was in 1891 considered Alaska or even U.S. territory. The community of Tsimshian Indians known collectively as the Metlakatlans had migrated to the Annette Islands in 1887 from British

Columbia after suffering what their “leader” Father Duncan, an Anglican missionary, had characterized as persistent harassment and religious persecution from the Church of

England.

Metlakatla—a sovereign Native nation that came into being as the result of Native peoples crossing the borders of settler colonial empires defied prevailing attitudes toward

Native people in Alaska and the contiguous states and raised important questions about

1 Act of March 3, 1891, 26 Stat. 1101, Section 15. When in quotes, the spelling of Metlakatla is quoted exactly as written in the particular document. Sometimes this is “Metlakahtla” or some other rendition. Otherwise the spelling is Metlakatla. 184

migration, settlement, and state formation. The group arrived in the territory at the commencement of the Allotment Era of federal Indian policy in which the federal government sought to break up tribal lands in order to facilitate the forced assimilation of

Native people. In the midst of this turbulent era of Indian policy, this group of Tsimshian

Indians crossed into the U.S., secured permission to remain, and a few short years later received a large amount of land, the rights to which the courts and the federal government fiercely defended in subsequent decades. Furthermore, the Metlakatlan Indian

Community sought citizenship rights as early as 1907 and, through Duncan and other

Tsimshian activists, continuously insisted that their relationship with the federal government was not similar to that of Indians of the contiguous states. The story of

Metlakata, then, serves as an important counter point to the sustained legal tensions surrounding the nature of the relationship of Alaska Natives with the federal government and reveals important nuances within the legal frameworks of United States settler imperial governance in territories.

This chapter explores the curious case of Metlakatlan “foreign Indian” refugees in the context of two other “refugee” experiences that expose the flexibility and global reach of settler imperialism that became central to the function of “incorporated” territories during WWII: European refugees seeking asylum in Alaska and the internment of

Pribilof Island Aleut in southeast Alaska. In the wake of Tsimshian settlement on Annette

Island, Father Duncan, territorial and federal officials, and the Church Missionary Society framed the community of Metlakatla as an example of the success of missionaries in indigenous communities and thus as a narrative of successful “civilized settlement” that

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legitimized further efforts to colonize Alaska by non-Native peoples.2 As Metlakatlans negotiated these complex colonial relationships, the story of these “foreign Indians” came to bolster arguments for the settling of another group of religious refugees in the territory in the 1930s while simultaneously occluding the racialization of Pribilof Island Aleut in ways that justified their internment and denied their sovereignty. In this way, the narratives of what I call “civilized settlerism” that grew out of the Metlakatlan experience served to justify Metlakatlan settlement on Annette Island and the exemption of Alaska from national immigration law—two processes that served to deny Alaska Native indigeneity and U.S. citizenship rights, therefore sustaining Alaska Native dispossession through the non-recognition of Indian status. At a time when immigration restrictions in the United States were profoundly stringent with the 1924 Reed-Johnson Act and the system of national origins quotas, federal officials turned their eyes to the nation’s outlying territories as a means to allay to the alarming refugee crisis in Europe after

Hitler’s rise to power in the 1930s. To these officials, playing an active role in the resettling of these refugees served strategic purposes with regard to projections of United

States democratic freedom and national exceptionalism and the use of territories afforded them this opportunity without requiring the acceptance of refugees into the nation proper.

In Alaska, these officials saw an opportunity afforded by the flexibility of settler imperial space in which immigration restrictions could potentially be manipulated. However, by attempting to use Alaska in this way, the flexibility that these proposals required clashed with the frontier settler colonial visions associated with the territory. The debates that

2 See Mique’l Icesis Dangeli, “Bringing to Light a Counternarrative of Our History: B.A. Haldane, Nineteenth-Century Tsimshian Photographer,” in Sergei Kan, ed. Sharing Our Knowledge: The Tlingit and Their Coastal Neighbors (Lincoln: University of Nebraska Press, 2015) 265-293 for the ways Metlakatlans defied missionary encroachment on their social, cultural, and political sovereignty. 186

ensued demonstrate the contingent nature of “incorporated” territories and who can claim the status of settler.3

To federal and territorial officials, the frontier visions of Alaska as ripe for white pioneer settlement that could be supported through the abundance of natural resources had failed to attract significant settler populations from the contiguous states. Aside from the late nineteenth century gold rushes, few “pioneers” had made their way to Alaska for permanent settlements and territorial and federal officials worried about their ability to

“develop” Alaska without a significant change in population levels. In the 1930s in the midst of the Great Depression, the federal government had relocated 200 destitute

Midwestern farmers in an effort to alleviate the effects of the economic crisis and to settle

Alaska. After a few short years, many considered the Matanuska Valley Colonization

Project a failure in terms of government expenditure and as a method of permanent settlement. The agricultural colony hemorrhaged colonists in its inaugural year, and even those Matanuska colonists who remained in the territory permanently amounted to little in the way of the grand resource development schemes that territorial and federal officials had hoped for. Thus, in 1939 the Interior Department released the results of a study entitled “The Problem of Alaskan Development,’ commonly referred to as the Slattery

Report. The report suggested that one of the major problems in the development of

Alaska was the system of immigration quotas ushered in through the Reed-Johnson Act of 1924. This act, also called the Immigration Act of 1924, increased immigration restrictions by limiting the annual number of immigrants from any country to 2% of the population of people from that country in 1890. Historian Mai Ngai argues that the 1924

3 See Juliana Hu Pegues, “Interrogating Intimacies”; Asian cannery workers barred from re-entry to contiguous states on grounds that by going to AK they had left the U.S. 187

act was the “nation’s first comprehensive restriction law” and through the establishment of “numerical limits on immigration and a global racial and national hierarchy” the act

“drew a new ethnic and racial map” of the nation “based on new categories and hierarchies of difference” while articulating “a new sense of territoriality, which was marked by unprecedented awareness and state surveillance of the nation’s contiguous land borders.”4

This surveillance and policing of the nation’s borders brought the role of territories into sharp focus and set in motion intense debates over national space and U.S. expansion when in 1940 and 1941 two bills that sought to settle colonies of European refugees in Alaska through exemption from the quota system came before subcommittees of Congress. While neither bill advanced to become law, the debates that ensued in these subcommittee hearings and in the press reveal important processes about the making of national territory, the crystallization of the boundaries of citizenship, notions of indigeneity and belonging, and arguments about who could “settle” Alaska. The first bill sought to directly exempt immigrants to the territory of Alaska from the national quota system all together. To assuage fears and protest that these non-quota immigrants might secretly slip south into the 48 states, the bill forbid them to leave the territory for five years, at which time they could apply for quota status. Any attempt to leave the territory for the 48 states prior to achieving quota status would result in deportation. Rather than quell fears though, these restrictions set off a firestorm of protest in Alaska as territorial officials, local public officials, and residents clamored against a separate set of laws for the territory as opposed to those that governed immigration in the contiguous states.

4 Mai Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004) 3. 188

Standing in further contrast to the complexities in Indian policy, citizenship, and migration Alaska is the decades long exploitation of Aleut labor in the fur seal industry on the Pribilof Islands in the Bering Sea. While Metlakatlans experienced a relatively uninterrupted recognition of land use and occupation rights on Annette Island in southeast Alaska, the federal government maintained Aleut citizenship, land, and sovereignty in a state of limbo in order to compel the labor of Aleuts in sealskin harvesting. The Pribilof Islands are home to one of the largest seal breeding grounds in the world, and one U.S. official remarked early on after the U.S. purchase of the Alaska territory that “though comparatively small, [St. Paul Island] is one of the most, if not the most, important of all the late possessions of Russia in America.”5 When Russians first came upon the Pribilof Islands of St. Paul and St. George in 1786, they were uninhabited.

The Russian American Company decided that it would be “necessary to create a colony there, from which to draft laborers to do the killing, skinning, and curing” of seal pelts.

To solve this labor and skill problem, they removed Aleuts from the islands of Unalaska and Atka and brought them to live on St. Paul and St. George.6 Upon the purchase of the territory from Russia by the United States, the federal government assumed complete control of the sealing operations and the labor relations of the Aleut who lived there.

Thus began the twisted trajectory of Pribilof Aleuts under U.S. jurisdiction; while the status of all Alaska Natives with regard to the U.S. federal government began and remained ambiguous, perhaps none more so than Pribilof Aleuts who saw themselves subjected to the authority of the Alaska Commercial Company through government lease

5 Report of the State Department, St. Paul’s Island, Alaska, House Document 131, 40th Congress 2nd Session, 1868. 6 G. Brown Good, The History and Present Condition of the Fishery Industries: The Seal Islands of Alaska, (Washington: Government Printing Office, 1881) 19. 189

contracts for the islands, the Department of the Treasury, and then the Department of Fish and Wild Life. For the rest of Alaska Natives, the federal government relegated their affairs to the Bureau of Education and then the Bureau of Indian Affairs in 1931. Thus, the Pribilovian Aleuts mark an important departure that exemplifies the divergent constitutive capillaries of settler imperialism in Alaska.

The brutal history of Aleut enslavement and internment is intimately tied to the productive narratives of Alaska and refugees. In their co-authored article “Decolonization is not a Metaphor,” Aleut scholar Eve Tuck and K. Wayne Yang argue that the internment of Aleut citizens in “abandoned warehouses and canneries in southeast

Alaska” was not for the “protection of the people” but “that the U.S. Government feared the Aleuts would become allies with the Japanese and/or be difficult to differentiate from potential Japanese spies.” They remind us “white people who lived on the Aleutian

Islands at the same time were not interned.” This “shuffling of Indigenous people between Native, enslavable Other, and Orientalized Other shows how settler colonialism constructs and collapses its triad of categories.”7 In this chapter I aim to interrogate the scenario of Aleut internment in the process of the building and collapsing of the settler- native-slave triad alongside other narratives of ‘refugee’ migration and settlement. In doing so, I hope to expose the ways in which various policies, laws, and narratives are at work in territorial Alaska and what they mean for Native sovereignty and citizenship and the construction of national space.

“Foreign Indians”: Migration and Narratives of “Civilized Settlement” in Southeast Alaska

7 Eve Tuck and K. Wayne Yang, “Decolonization is not a metaphor,” Decolonization: Indigeneity, Education, and Society, Vol. 1, No.1 (2012), 1-40.

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To hear missionaries, territorial, and federal officials tell the story, the Metlakatlan

Indians migrated to the Alaska territory from British Columbia under the guidance of

Father Duncan, an English born Anglican missionary. Duncan had served as a missionary among this group of Tsimshian Indians in British Columbia, founding a utopian community at Metlakatla. Owing to doctrinal differences and intense “harassment and persecution” exacted on the Metlakatlan Indian community after Duncan’s split with the

Church Missionary Society, he led his community of Tsimshian Indians across the border to the United States territory of Alaska in 1887. Framed as a narrative of persecuted

Christians seeking religious freedom, the U.S. federal government obliged Duncan and his followers’ requests to stay. Upon the arrival of the first members of the community in

Alaska on Annette Islands, Duncan approached the federal government seeking “to purchase a site for his mission colony” however, he was informed that the government had no legal power to sell him an island or a plot of ground in the territory. Allegedly, he was authorized to “go to Alaska and there he and his people would be protected under what was called ‘squatters rights8.’”

The story of Metlakatla is, of course, much more complicated than these missionary accounts. In her essay “Bringing to Light a Counternarative of Our History,” Metlakatlan

Tsimshian/Tlingit Scholar Mique’l Icesis Dangeli has demonstrated the ways Metlakatlan

Tsimshians maintained their cultural traditions in spite of the intense colonial oppression of the Church Missionary Society in Canada and Father Duncan in Alaska.9 The

8 1934 hearings 18359. 9 Mique’l Icesis Dangeli, “Bringing to Light a Counternarrative of Our History: B.A. Haldane, Nineteenth- Century Tsimshian Photographer,” in Sergei Kan, ed. Sharing Our Knowledge: The Tlingit and Their Coastal Neighbors (Lincoln: University of Nebraska Press, 2015) 265-293. 191

Tsimshian that comprised the Metlakatlan community continuously opposed Duncan’s strict rules prohibiting potlatching and the ownership and use of regalia and other

Tsimshian cultural objects and practices while also collaborating with Alaska Natives in negotiating their relationship to the U.S. federal government. The Metlakatlan

Tsimshians had not, as Duncan and his supporters insisted, abandoned their cultures and identities, but rather worked within and against violent colonial processes in their attempts to survive and thrive.10 While some Alaska Natives protested Tsimshian presence on Tlingit land, the relationship of Metlakatlans to their Alaska Native neighbors is equally complex. In this chapter it is not my aim or intention to make claims or draw conclusions regarding these relationships. I rather seek to follow the construction of a narrative and the work it did in shaping the Alaskan legal landscape in relation to

Alaska Native claims to land and sovereignty. I seek to follow these trajectories as they relate to the territory as a settler imperial space in which territorial and federal officials maintained Alaska Native claims to land and sovereignty as ambiguous and irreconcilable within frameworks of U.S.-American Indian relations. I seek to account for how Metlakatla and the Annette Island reserve stand in contrast, especially in terms of land.

The fact that the federal government hadn’t the right or the means to allocate land in Alaska was that Congress had apparently not yet extended the land laws of U.S. to the territory of Alaska. However, Duncan and his followers settled on the island and less than three years later, in January of 1890, Representative Byron Cutcheon (R-Michigan) introduced two pieces of legislation to the House of Representatives, which were read later in the Senate. First was H.R. 3873, a law “to extend the general land laws of the

10 Ibid. 192

United States over the Territory of Alaska.” The second was H.R. 3874, a bill “to set apart certain lands in southeastern Alaska for the temporary use of certain native people.”11 While this bill died in committee, the consideration of land laws in Alaska appears to have been facilitated by the desire for Duncan and the community of

Tsimshian Indians associated with him at the time to secure land permanently in the territory. The following month, the issues was considered as part of H.R. 7254, a “bill to repeal timber-culture laws and for other purposes.” This timber bill, when enacted into law, included the clause by which the Annette Islands Reservation was created.

When the Senate convened in September to consider the legislation, Senator

Manderson (Nebraska) proposed to include an amendment after section 12 of the bill in which the “Annette Islands, situated in the Alexander Archipelago, in Southeast Alaska” be “ set apart as a reservation for the use of Metlakahtla Indians, and those people known as Metlakahtlans who have recently emigrated form British Columbia to Alaska and such other Alaska natives who may join them, to be held and used by them in common, under such rules and regulations and subject to such restrictions as may be prescribed from time to time by the Secretary of the Interior.”12 Manderson argued that because the

Metlakatlans are “not natives of this country” “they must, become in the end, before they can acquire this property, naturalized citizens of the United States.”13 He reasoned that since it was not possible for them to become citizens under current legislation that limited naturalized citizenship to whites and former enslaved blacks, the purpose of the amendment would be to protect them in the enjoyment of the land. He lamented that they needed “some recognized footing at that place” because “they can at any time be

11 Senate Record January 6 1890 Congressional Record, Senate, page 403 12 Cong Rec Sept. 16 1890 13 Ibid. 10092 193

disturbed by those who would go upon the island under any pretenses, claiming that it was mining land or in pursuit of timber upon the land.”14 He supported his argument that the Metlakatlans ought to be protected by describing them as a “a community there that is in many respects a model; it would be a model to many white communities. There is no liquor sold there, and they are a Christian and God-fearing people.”

Senator Henry Teller interrupted, protesting that “I certainly understand that they occupy the same position in Alaska that all the native Indians there occupy. We have not given the natives any land; we have not said they might live in any particular place. I can see no reason why these Indians, who are foreign Indians, should be treated differently from those Indians born on the soil who we agreed to protect and to treat in a certain method by our treaty with Russia.”15 Already, the transnational character of Tsimshian migration and indigeneity had been rendered legible in specific ways and illegible in others. To Manderson, the Metlakatlans represented an example of “civilized settlement” that legitimized claims to land in the form of a reservation. In contrast, Teller contended that regardless of their status as “foreign Indians,” their indigeneity rendered them indistinguishable from Alaska Natives.

At this point, none other than Henry L. Dawes—the infamous architect of the Dawes

Act, or General Allotment Act that sought to break up tribal governments and land— intervened in support of Manderson’s amendment. He interrupted with his own reasoning as to “why we might perhaps do this thing.” He described in detail the work the

Metlakatlans had put into their community in Canada, only to see it all for naught when the bishop of the Church of England “dispossessed them of the land on the ground that all

14 Ibid. 10092; Barbara Welke, Law and the Borders of Belonging in the Long Nineteenth Century United States, 72. 15 Ibid. 10092 194

the land belonged to the crown, and when they moved over to Alaska prevented them from carrying any of their fixtures…They lost everything except what they could take in their hands and put in their boats and move over to Alaska. That has been their life.”16 He concluded that “now they live in constant terror for fear their work and labor upon this island may result in the same way.” He cited the exceptional character of the

Metlakatlans demonstrated by the church and houses they had built and the fact that they

“exhibit more common sense in the matter of civilization than any Indians I ever saw anywhere.” To Dawes, this evidence of “civilization” substantiated the necessity of a reservation even though it seems to stand in direct contradiction to Dawes’ own understanding of Indian policy in which Indian reservations were understood to inhibit the civilizing affects of assimilative efforts. His fellow Congressman agreed with his argument and the amendment was accepted. The bill passed into law on March 3, 1891 officially creating the Annette Islands reservation.

Interestingly, the timber-culture repeal bill was not the only bill passed into law that day. The Immigration Act of 1891 was also passed that day, and it was the first act to create a centralized federal authority to regulate and enforce immigration laws while establishing the Bureau of Immigration as part of the Treasury Department.17 It also expanded the categories of “undesirables” to include “polygamists, and aliens convicted of a crime involving ‘moral turpitude.”18 At a time when both Indian policy was explicitly taking aim at indigenous collective land ownership and immigration policy was becoming ever more stringent, the Metlakatla Indian community’s ability to secure land

16 Ibid. 17 Erika Lee, “immigrants and Immigration Law: A State of the Field Assessment” Journal of American Ethnic History, Vol. 18, No.4 (Summer, 1999) pp. 85-114. 18 Immigration Act of 1891, (26 Stat. 1084), Erika Lee, “immigrants and Immigration Law” 195

appears even more remarkable. Nevertheless, what lawmakers did when they created the

Annette Islands reservation was to set an important precedent with regard to Alaska’s relationship to federal Indian law. In the ensuing decades, the relationship between

Metlakatlans, Alaska Natives, and the federal government would become increasingly strained as territorial and federal officials grappled with what kind of space Alaska could and should be. In this regard, the narrative these lawmakers wove about the Metlakatlan community as a city on a hill of sorts, became increasingly important to understandings of Alaska and the U.S. with regard to the ability of missions to be successful in Native communities, the United States as a democratic stronghold where peoples could be free from persecution, and the ability of the United States to successfully colonize Alaska. All three of these elements coalesced in Metlakatla as a narrative about migration and civilized settlement, though ironically, the recognition by federal officials of the high degree of “civilization” among the Metlakatlans did not qualify them for citizenship.

Instead, the “civilized settlerism” narratives that territorial and federal officials read on to

Metlakatans served to aid the ongoing dispossession of Alaska Natives.

Unwittingly, in creating the Annette Island reservation, these lawmakers also established a stronghold for Native people to exercise sovereignty over land, water, resources, and citizenship. Non-Native policy makers perceived and framed the

Metlakatlans as a pious group of Christian Indians under the care of Father Duncan, and in this framing lawmakers came to understand Metlakatlans as replicating a settler colonial story that had particular currency in the national imagination. Metlakatlans worked hard to preserve their identities and cultures despite the circumstances under

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which they came to Alaska and the oppressive missionary style of Duncan.19 They pursued avenues to secure their rights and to their reservation lands and to their rights to livelihood within them. For example, a group of Metlakatlans who had been prevented from operating boats on account they could not obtain licenses as non-citizens successfully petitioned Congress for the extension of “certain civil liberties” in 1907, and in the early twentieth century they successfully shrugged off the absolute control that

Duncan and others by leveraging the U.S. Bureau of Education against mission interests.

They also successfully defended their reservation from corporate fishing interests in the

Supreme Court in Alaska Pacific Fisheries v. United States, and in the 1930s those who had been born in British Columbia and had migrated as part of the original community petitioned the federal government to extend the 1924 Indian Citizenship Act to include them. Throughout ensuing Indian policy in the twentieth century, the sovereignty of the

Metlakatlan Indian Community has remained more or less untouchable, standing in stark contrast to Alaska Native sovereignty and land struggles throughout the territory.

At the same time, and discussed in previous chapters, Alaska underwent a fundamental change as well—that from a designation as “District of Alaska” to the incorporated “Territory of Alaska” in 1912. This shift lingers in the background as

Metlakatlans and Alaska Natives negotiated their relationship to the federal government and made claims on citizenship, sovereignty, and land. As territorial and federal officials along with the courts increasingly identified the status of both Metlakatlans and Alaska

Natives as similar to American Indians, it is important to trace the distinctions. As

Metlakatlans engaged missionaries, territorial and federal officials, and their rights to land were debated in court, narratives of “civilization” underscore the logic by which

19 Mique’l “Counternarrative” 197

these missionaries, officials, and judges repeatedly upheld the legitimacy of the reservation. It is important to note that this was typically the opposite of how civilization discourse operated in the contiguous states in which evidence of assimilation, usually denoted by the achievement of a “civilized life,” was more often than not used to argue against the legitimacy and necessity of Native land and sovereignty rights. In the case of

Metlakatla, these same arguments were made as evidence that the reservation had served its intended purpose and that the Tsimshian Metlakatlans should forever be protected in their use and occupation of the reserved lands that eventually, and controversially for corporate interests, would come to contain 3,000 feet of coastal waters.

These narratives arose from the ability of Metlakatlans to turn the island reserve into a thriving village. Within a few years of the arrival of the Metlakatlans and the creation of their reservation, they had constructed and were operating a “sawmill, waterworks which have cost $9,000, a cannery wherein they packed this season 12,400 cases, and a shop wherein they build boats.”20 They had also constructed a town with housing for the 1,000 members, many of whom traveled outside the reservation for work in neighboring sawmills and canneries, and some traveled annually to Washington for the hop picking season.21 The success of the community and perhaps their outside employment began to generate tensions in neighboring Native communities and white settlements. Alaska Native communities in southeast Alaska had been lobbying complaints against the Metlakatlans on the basis of their being foreign to Alaska.

Territorial Governor John Brady recollected in his 1899 report to the Interior Secretary that “the Prince of Whales Indians also complained against the Metlakahtla community,

20 Report to the Secretary of the Interior, Governor of AK, 1898/1899 p46. 21 Ibid. 47 198

stating that the latter are foreigners and come to their island, cut out the best timber, and carry it to their sawmill at Metlakahtla.”22 Metlakatlan fishing enterprises had also inflamed racial tensions, and white fisherman clashed with Metlakatlan seiners telling them “go back and stay on the reservation” where they belong. To make matters worse, minerals had been discovered on the Annette Island, thrusting the Metlakatlans into the first of many conflicts over land and their relationship to the United States government.

Despite evidence of Metlakatla as a thriving community, the increasing tensions between the Metlakatlans, their Alaska Native neighbors, and white settlers disturbed Alaska

Territorial Governor Brady and he expressed his concerns with the “trouble breeder” legislation that had created the reservation in 1891. His objections set the stage for ensuing contests over the relationship of the Metlakatlans to the federal government through the framing of civilization discourses.

Brady’s observations of the conflicts arising from the Annette Island reservation reveal the settler imperial tensions that characterize the relationship between Alaska

Natives and the federal government. He argued in his report that the Annette Island reservation “introduces into Alaska the reservation system of handling natives, a system which has been roundly condemned by those who know its workings.” He lamented that because some Metlakatlans left the reservation for outside work, that the reservation was a failure, as the reservation lands themselves could not independently sustain the community. Furthermore, “they make no attempt at the cultivation of the soil, nor do they attempt stock raising.” This, coupled with the fact that the Metlakatlans were “anxious to declare their intent to become citizens” led Brady to conclude that “the best way out of this muddle, which would set a very bad precedent when we consider that we have

22 Ibid. 5 199

30,000 natives who are real Alaskans and not from British Columbia to deal with, is to confer the right of citizenship upon these Metlakahtlans and give them the right to take up 160 acres of land each upon Annette Island. Then, as citizens, the laws are open to them.”23

Brady’s concern was that the reservation rights of Metlakatlans constituted an uneven application of Indian policy in that “real Alaskans” had not been recognized as having those same rights. Additionally, Metlakatlans did not understand their relationship to the federal government as akin to American Indians of the contiguous states, but territorial and federal officials understood the reservation as conferring Indian status on

Metlakatlans in that they then constituted wards of the government, and faced possible confinement to the reservation. Faced with this possibility, a group of Metlakatlans sought clarification of their legal status later that same year. The community of

Metlakatla sent Edward Marsden (a reverend trained by Duncan and sent to neighboring communities by the Board for Missionary Work), Alfred Atkinson, Peter Simpson (future founding member of the Alaska Native Brotherhood sometimes referred to as “The

Father of the Alaska Native Brotherhood and the Father of Alaska Native Land Claims”),

Usher [unsure of first name], to meet with Governor Brady and to clarify their “present status as a people and a community.”24 Brady concluded that while the Tsimshian community had migrated 12 years prior, “your [Metlakatlans] position as a people in the

Territory is uncertain.” He decided that because Congress created an Indian reservation for them, “your position is as natives upon a reservation until otherwise ordered by

Congress and you are bound to observe and live under the rules and regulations which the

23 Ibid. 47-48. 24 Brady to Frederick Ridley and Benjamin Booth (Officers for the Metlakatlan Indian Community) November 23 1899 1935 hearings 200

Secretary of the Interior may prescribe from time to time.” He concluded that if the

Interior Secretary saw fit to “confine you to the limits of Annette Island, he would have” the Act of March 3, 1891 that established the reservation “as his authority for doing so.”25

The Metlakatlans responded to Brady’s conclusions that they were not an autonomous community with alarm and Father Duncan met Governor Brady’s usurpation of his authority with rebuke. Duncan also repudiated Mardsen undermining his authority by approaching Governor Brady themselves—an action that revealed underlying

Metlakatlan struggles for sovereignty from both Duncan and the U.S. Indeed, many

Metlakatlans recognized that Duncan led his mission and governed the Metlakatla community in British Columbia and in their new home in Alaska with absolute authority and control. As Duncan trained up Tsimshian leaders like Marsden and sent them to other communities in southeast Alaska, some became disenchanted with Duncan’s insistence on complete control and allied with other Alaska Natives who were resisting white encroachment on their land autonomy. Brady’s assertions that Metlakatlans had become wards of the government in accepting an Indian reservation alarmed Mardsen and others, who in response began organizing to petition the federal government for citizenship rights.

Issues of Metlakatlan legal status, citizenship, and civilized settlerism came to a head when Mark Hamilton, a Metlakatlan Indian, complained to Duncan that he had been denied a boat license on account he was not a citizen. Duncan blamed the inability of

Metlakatlans to become citizens on issues of race, arguing that “because his skin is not white nor black” he is barred from earning a living, and he appealed to assumptions of civilization and modernity, insisting that this man “has never in his life lived as an

25 Ibid. 201

Indian” and therefore should be granted some civic rights in the form of the right to operate his motor boat. Perhaps in realizing that citizenship was not a possibility at the time due to the racialized restrictions of naturalized citizenship, Metlakatlans sought a number of “civil liberties” that would allow them more control over their resources and livelihoods. Reflecting these interests, a compromise piece of legislation was introduced to Congress by Knute Nelson (R-Minnesota) on February 4, 1907 regarding the ability of

Metlakatlans to operate fishing boats and motorized vehicles. The bill, in which those qualified to operate such vessels shall “be entitled to receive and obtain licenses as masters, pilots, and engineers, as the case may be of any and all steamboats and other craft with the same force and effect as if they had been citizens of the United States.”

The Committee on Commerce, charged with considering the bill appealed to the same assumptions of civilization and modernity that affirmed Duncan’s narrative of effective missionizing that was also crucial to maintaining the reservation as a land base.

Interestingly, the Committee on Commerce also used these same civilization discourses to simultaneously support Metlakatlan rights to citizenship—or “civic liberties” at the very least. They reported that “they [Metlakatlans] are the most advanced, civilized, intelligent, industrious, and law-abiding Indians anywhere in this country” and while under the “charge and care of Doctor Duncan, a clergyman of the Episcopal Church,” they had succeeded in in developing all the trappings of modern society such as “a large cannery, a sawmill, a fine church, a hospital, and other public buildings, and all the inhabitants live in good frame houses, which they themselves have constructed.”26 The

Committee insisted that the level of “civilization” among the Metlakatlans entitled them to “certain civic rights” as a gesture to their accomplishments and “progress.” While

26 Senate Report 6693, 59th Cong. 2nd Sess. 202

pointing to these qualities, the bill also identified the Tsimshians of Annette Island as

“bona fide residents of Metlakatla, Alaska,” in what appears to be an affirmation of their right to inhabit the island as a community of Indians.27 Thus, despite Governor Brady’s assertions nearly two decades prior that the Metlakatlans should pursue citizenship as a means to free themselves from the reservation, the logic of civilization discourse in this case appears to be both supporting claims to citizenship-like rights while simultaneously affirming collective rights to land. In the allotment era of Indian policy (while certainly not applied evenly and everywhere in the contiguous states) this bill and Congressional logic appear to be paradoxical, exposing the developing significance of the Metlakatla narrative to both settler colonial objectives in the future settlement of Alaska and to future Tsimshian claims to citizenship, land, and sovereignty.

Issues concerning the citizenship status of Alaska Natives were not solely the concern of Metlakatlans. By the late nineteenth century, Alaska Natives across southeast Alaska had marshaled protests to their exclusion from citizenship. Some Alaska Native activists perceived citizenship as a means to make claims to land and equal treatment in the absence of treaties. Furthermore, the lack of citizenship prevented Alaska Natives from staking mining claims. As discussed in earlier chapters, the exclusion from citizenship in the face of increasing white encroachment on Native land and resources prompted a group of Tlingit, Haida, and Tsimshian Peter Simpson to form the Alaska Native

Brotherhood in 1912, followed by the Alaska Native Sisterhood. Among the eleven founding men of the Alaska Native Brotherhood was Peter Simpson, one of the original

Metlakatlans that had migrated from British Columbia in 1887. Simpson’s experiences in Alaska prompted him, along with the others, to form an organization dedicated to

27 Senate Bill 8299 203

securing citizenship and achieving recognition of Native land ownership. The inability for Native people to own land in British Columbia had been a primary motivating factor for Tsimshian migration to Annette Island, but Simpson and others quickly discovered that their inability to become a U.S. citizen prevented them from owning land in Alaska as well. Simpson attended the Sitka Industrial Training School established by Reverend

Sheldon Jackson (discussed in Chapter 2 for his reindeer program) in 1878, after which he was sent with a small group of Metlakatla men and their families to Gravina Island to assist with the construction and operation of a sawmill.28 Historians have designated the

Port Gravina sawmill as the first business to be built, managed, and operated—though not owned— entirely by Alaska Natives (and Metlakatlans).29 When a fire destroyed the mill and nearly half the town in 1904, Simpson’s status as a non-citizen prevented him from undertaking the necessary steps to rebuild—namely the ability to own land. Thus,

Simpson became an advocate for Native citizenship, helping found the ANB in 1912 and achieving a path to U.S. citizenship through the territorial legislature for Alaska Natives in 1915. He served as the organization’s first Grand Camp President from 1913-1916 and again from 1923-1924.30 In the 1920s, he was fundamental in the shift in focus of the

ANB from citizenship to land claims.31:

Federal officials in the late nineteenth and twentieth centuries constructed a narrative about Metlakatlan Tsimshians that aligned with their own ideas about U.S. expansion, settlement, and the exceptionalist ideology that underpinned the process of settlement and

28 For information on the life of Peter Simpson, seeNora Marks Dauenhauer and Richard Dauenhauer eds. Haa Kusteeyí: Our Culture Tlingit Life Stories (Seattle: University of Washington Press, 1994). “Peter Simpson—prophet, father of the Alaska Native Brotherhood,” Sealaska Shareholder, May 1984, p. 5; “Canadian Tsimshian Was A Leader for Alaska Native Rights: Peter Simpson Also Owned Alaska’s First Native Business,” SitNews, February 18, 2010. 29 Pat Roppel—cited in Sitnews article 30 “Peter Simpson,” Sealaska Shareholderi 31 Origin own the Land Claim Movement, ANB publication 204

land appropriation. And indeed, evidence demonstrates that the relationship between

Metlakatlans and their Tlingit and Haida neighbors was not always one of mutual understanding when it came to land and resources. However, by the founding of the ANB and ANS it seems that to some degree these tensions had on some level been placed aside in order to prioritize the pursuit of Native land and citizenship rights. What happened next was the subject of heated Congressional hearings in 1934. In the midst of organizing the ANB, Metlakatlans participated in what would come to be known as the “Metlakatla

Controversy” in which the Department of the Interior and the Bureau of Education replaced Duncan and the Board of Missionary Work as the authority over the reservation and Metlakatlan affairs and seized authority and oversight of the community.

This seizure of authority and property in Metlakatla by the BOE in 1915 was (and remains) a subject of controversy, and reveals how significant narratives of civilized settlerism had become to U.S. interests in Alaska. At the time, Duncan and his supporters held that Edward Mardsen and his group of Metlakatlan followers had conspired with the federal government to oust Duncan on account he was mismanaging funds and actively preventing Metlakatlans from receiving an education that would allow them to escape

Duncan’s tutelage. Mardsen in particular remained vocal about Duncan’s patronizing attitude toward Metlakatlans, and related to the federal government that they sought education beyond the few years that Duncan’s mission school offered. He argued that “a new school such as will give our young men and women an advanced education” such as that available at Sheldon Jackson’s “industrial training school.”32 Missionaries allied with

Duncan bemoaned the seizure of Metlakatla by the Interior Secretary and blamed the scheming of competing missionary Sheldon Jackson for inciting Metlakatlans to pursue

32 Metlakatla hearings 18381 205

intervention by the BOE. However, charges of Duncan’s authoritative control over the community along with allegations of exploitation and abuse may have led Metlakatlans to pursue the protection of the federal government. Alaska Territorial Governor J.F.A.

Strong had submitted a report to the Secretary of the Interior in 1913 indicating the dissatisfaction of the Metlakatlans with the archaic and authoritarian methods of

Duncan.33 Furthermore, Peter Simpson and other Metlakatlans had attended Jackson’s

Sitka Industrial Training School and may have been decided they preferred this to the mission schools in which Duncan deliberately cut off education for Metlakatlans after

(third grade?).34 Nevertheless, in January 1915, Interior Secretary Franklin Lane sent an agent to Metlakatla with an order to seize all property, including buildings, on account that Duncan and the Metlakatlans were “there by mere sanction of the Secretary” and that the buildings and other property were “fixtures on property belonging to the United

States.”35

Perhaps not coincidentally, Alaska had become an incorporated territory in 1912— shortly before Metlakatlan agitation prompted action against Father Duncan’s authority.

This shift in the status of Alaska may well have influenced understandings within the federal government regarding the Annette Islands Reserve and the status of its inhabitants. Additionally, subsequent scholars have noted that perhaps the takeover was

“a consequence of ‘a conspiracy’ on the part of federal officials to take control of what was the ‘showcase’ native community in all of Alaska.”36 In this context, the narratives of

33 Strong to Secretary of the Interior, October 20 1913. NARA RG 75 Series 806, Alaska Division, General Correspondence, Box 63 Metlakahtla 1913-1914, cited in Brian Hosmer American Indians in the Marketplace: Persistence and Innovation among the Menominees and the Metlakatlans, 1870-1920 (Lawrence: University Press of Kansas, 1999.) 34 Mique’l 35 Ibid. 18376 36 Brian C. Hosmer, American Indians in the Marketplace, 215. 206

civilized settlerism served both the interests of the federal government in that the Bureau of Education and Department of the Interior could lay claim to Metlakatlan success. It also suggests that by leveraging complaints against Duncan that he was preventing

Metlakatlans from realizing their potential, Metlakatlans also understood the weight of these ideas and employed them in superseding Duncan’s authority. By invoking the

Interior Department’s authority per the 1891 Act creating the reservation, they had made an interesting maneuver in terms of their relationship with the federal government that seemed to guarantee a much larger degree of autonomy. On January 28, 1915, Interior

Secretary Franklin Lane issued a new set of “Rules and Regulations for Annette Islands

Reserve, Alaska.” The new regulations established a 12 member council government that was elected every two years. This council was instilled with authority to “pass such ordinances for the local government of the Annette Islands Reserve” and to grant membership rights to “A native of Alaska of indigenous race, over 21 years of age residing outside of the Annette Islands Reserve” who had “made application in writing to the council.”37 Additionally, the council was provided with at least some control over the disposition of land and could “issue to members of the Annette Islands Reserve permits to occupy land within said reserve, and it may cancel such permits.”38 Thus, by appealing to the BOE, it appears that the Metlakatlans were able to assume control over a significant degree of sovereignty over both their reserved lands and citizenship/membership within the community. While still beholden to the Secretary of the Interior and now the BOE, this position was nevertheless precarious, however in the following years the President, the federal government and the U.S. Supreme Court

37 Rules and Regulations for Annette Islands Reserve, Alaska for Metlakahtla Indians and Other Alaska Natives, January 28, 1915. 38 Ibid. 207

expanded Metlakatlan rights to land and water and upheld the sanctity of those rights in court.

“Habits and Customs of Civilized Peoples”: Civilized Settlerism in Support of Native Land Rights

On the heels of territorial status for Alaska, the founding of the ANB and ANS, and the BOE assumption of authority over Metlakatla, President Woodrow Wilson issued what would be one of the final executive orders protecting Native rights in Alaska. In

1916, Wilson withdrew all of the coastal waters within three thousand feet of the shore as an executive order fishing reserve for Metlakatlans. Then the United States promptly filed suit against the corporate fishing enterprise, Alaska Pacific Fisheries, for the operation of a trap in the reserved waters on account that interference with Metlakatlan exclusive rights to fish in the reserved waters “destroyed the effects of the plaintiffs [the

United States] twenty-five years’ endeavor for the uplift and civilization of said Indians and its efforts to make them self-supporting and self-governing.” 39 Wilson’s declaration adding the 3,000 feet of coastal water to the Annette Islands Reserve and the following lawsuit began to crystallize the ways in which the civilized settlement narrative of

Metlakatla would operate in protection of the reservation. In the declaration, Wilson argued that because the Metlakatlans operated a cannery “for self support…it is necessary that the fishery in the waters contiguous to the hereinafter described group comprising the

Annette Islands be reserved for the purpose of supplying fish and other aquatic products for said cannery”40 This logic—that because the Metlakatlans participated in capitalist enterprise (a hallmark of civilization) they had an exclusive right to the waters

39 United States of America vs. Alaska Pacific Fisheries, District Court for the District of Alaska, Division Number One, at Juneau, 263—K.A. No. 1468—A, 7-8. 40 Proclamation of April 28th, 1916, Woodrow Wilson. 208

surrounding their land—foreshadows debates in the territory and across the contiguous states about the function, purpose, and legitimacy of reservations and collective land ownership. At the time in 1916, Wilson’s reasoning appears at odds with an understandings of reservation policy and the “rules” of free market capitalism.

Nevertheless, in future debates throughout the remainder of allotment and then IRA eras in Indian policy, the Annette Island reserve remained immune from challenges to the theories of reservations generally, and while reservations came and went in the territory of Alaska in the 1930s, 40s, and 50s, Annette Island remained explicitly off limits within the context of these heated debates (discussed further in Chapter 5). I argue that this is due to the fact that to many territorial and federal officials, the Metlakatlans also represented the success and legitimacy of “civilized” “Christian” settlerism that could serve as a model for future (white) settlement and U.S. expansion. Particularly in the

1930s and 1940s territorial and federal officials worried over the lack of white migration to Alaska and the economic and political consequences low numbers of white settlers would have on the anticipated development of natural resources and future potential for

Alaska statehood. Discussed below, the narratives of civilized settlerism that these officials scripted on to Metlakatlans became key in national debates over who could settle in Alaska and how it should be done. In the mean time, the contests over exclusive

Metlakatlan rights to their reservation lands and fishing waters also offers insight into the paradoxical nature of Indian policy in settler imperial Alaska.

Immediately after Wilson’s proclamation, the federal government filed suit against

Alaska Pacific Fisheries in the District Court of Alaska for their refusal to remove a fish trap from the reserved waters. In this complaint and ensuing arguments, the U.S. further

209

developed the logic of civilized settlerism in defense of the Metlakatlans. In the original complaint, the federal government first claimed exclusive ownership of the Annette

Islands and surrounding waters, then argued that the Metlakatlans, in the “peaceable possession” of the reserve were “educated and have adopted the habits and customs of civilized peoples.”41 The encroachment of commercial fishing operations threatened the

“progress” made by Metlakatlan Indians. They then directed Alaska Pacific Fisheries, and all other commercial fishing operations, to refrain from fishing in the reserved waters and to instead fish in the “ample fishing grounds, and sites and locations for traps in

Southeastern Alaska, other than the limited area reserved.”42 Thus, the narrative of civilized settlerism that legitimized the migration of Metlakalan Tsimshian in 1887, the creation of their reservation in 1891, and the protection of their exclusive use of coastal fishing waters had rendered Metlakatlans legible to territorial and federal officials and the court in ways that the sovereignty and land of neighboring Tlingit was not. Tlingit fishing waters, apparently, were fair game for exploitation by white commercial interests in contrast to those of Metlakatlans under the protection of the Annette Island reservation even though the reservation existed on Tlingit land.

Alaska Pacific Fisheries responded to the complaint by pointing out the Metlakatlans’ immigrant/foreign status and undermining the claims of Indian “civilization” that the government had relied on in supporting the legitimacy of the reserve and surrounding coastal waters. In attempting to undermine the legitimacy of the colony, APF pointed out that “all of the Indians so migrated from British Columbia to Annette Island were citizens, residents, and inhabitants of British Columbia prior to the said migration and

41 United States of America vs. Alaska Pacific Fisheries, District Court for the District of Alaska, Division Number One, at Juneau, 263—K.A. No. 1468—A. 42 Ibid. 210

came to Annette Island as members of a colony headed by […] Father Duncan.”43 While they conceded that the “Indians have been to some extent during the past twenty-five years educated, and they have to some extent adopted the habits and customs of civilized people” they rejected the federal government’s narrative that the success of the community was due to U.S. supervision. Instead they pointed out “while the fish cannery and other improvements mentioned were built by the Indians referred to, all such work of construction was done under the personal supervision of one Father Duncan, a white man.” They continued that all work in the cannery, sawmill, and other enterprises had, in fact, ceased immediately after the Bureau of Education deposed Duncan.44 To Alaska

Pacific Fisheries, the Metlakatlans were not self-sufficient Christian settlers but rather foreign Indians under the supervision and direction of a white man who was solely responsible for their industrial success.

The lawsuit also had implications for Alaska as a territory and the ways in which

Alaska Native land and sovereignty were legally constructed at the time. In their initial response to the complaint, Alaska Pacific Fisheries also denied the lawfulness of

Wilson’s proclamation as inconsistent with the constitution in that only Congress had the power to reserve land and water. The federal government responded with a memorandum of opinion in which they drew on the 1887 decision of the Attorney General who gave his

“opinion as to whether or not the President could lawfully set apart a body of public domain for the use of alien-born Indians.”45 In 1887 the Attorney General had declared that the President’s power “to declare permanent reservations for Indians to the exclusion of others on the public domain does not extend to Indians not born or resident in the

43 Ibid. 22 44 Ibid. 17 45 Ibid. 38 211

U.S.” but that an Act of Congress could make the reservation. Based on this the federal government concluded that “while Alaska, it is true, is not Indian Country in the traditional sense of the word, and the aborigines of Alaska have never been compulsorily herded upon reservations,” Congress had the authority to make it such and did in the act of March 3, 1891. They firmly concluded that “Congress meant to make an Indian reservation.”46 Based on this piecemeal designation of Indian Country in Alaska, the federal government concluded that the waters set aside in Wilson’s proclamation were indeed legitimate.

In the end, the federal government won its suit on behalf of the Metlakatlans, declaring that “the purpose of creating the reservation was to encourage, assist, and protect the Indians” in their pursuit of industry and the construction of “an extensive establishment where they canned salmon for the market.” The reservation, they concluded, naturally meant to include surrounding waters. Significantly, the Court also noted that “true, the Metlakahtlans were foreign born, but he action of Congress has made that immaterial here.”47 Here, the Court affirmed the “civilized” settler narrative legitimizing the migration of Tsimshian from British Columbia to Tlingit territory through the disavowal of Tlingit sovereignty and land ownership. In doing so the decision exemplifies the contradictions of settler imperial space in that “alien-born Indians” are rendered legally legible within particular elements of federal Indian policy even though for contradictory reasons that reveal how civilization discourses cut multiple ways. At a time when reservations were often critiqued as preventing the assimilation and

“civilization” of Native people, the Annette Islands reservation is rendered the opposite,

46 Ibid. 42 47 Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918) 212

thus Metlakatla stands in contrast to policy regarding Alaska Natives and general Indian policy in the contiguous states. The logical assumption here—if this decision established a precedent and was therefore applied to the entirety of the territory—would be that

Alaska Natives should be treated in a similar manner and that they too should enjoy exclusive rights over land and fisheries. But following year, Congress did the exact opposite by prohibiting the creation of future executive Indian reserves without legislative consentnot only in the territory of Alaska, but in the entirety of the United

States. 48 While this may not have had significant implications for tribes in the contiguous states where treaties and legal precedent had established a framework for the recognition of Native land, in Alaska, this cast Alaska Natives into a state of further ambiguity regarding their relationship with the federal government.

Five years after the prohibition of Executive Order reservations, issues of U.S. citizenship arose on Annette Island again when Congress passed the 1924 Indian

Citizenship Act, which made all American Indians and Alaska Natives U.S. citizens by legislative fiat. The Indian Citizenship Act only applied to Indians born in the United

States, effectively excluding all Metlakatlans who had migrated to Annette Island reservation since 1887. Citizenship rights, as we have seen, had been a priority of

Metlakatlans for some time, and their exclusion from the 1924 act prompted efforts by excluded Metlakatlans to seek an amendment or special legislation to allow for their naturalization. In 1932 a Ketchikan attorney sent a letter to Territorial Delegate Anthony

Dimond stating that a number of Metlakatlans had approached him “regarding the matter

48 Case and Voluck, Alaska Natives and American Laws, 27. 213

of the passage of a law giving them a right to apply for citizenship papers in the courts.”49

Dimond responded favorably, and the following year introduced H.R. 4808, an act extending citizenship to the 130 or so original Metlakatlan migrants who were still living.

In lobbying support for the bill, Dimond employed the familiar narrative of the

Metlakatlans as “an industrious and intelligent race” and “a valuable part of the community,” thereby expanding the logic that had heretofore been used to support

Metlakatlan rights of settlement and exclusive land claims to also demonstrate rights to citizenship.50

Dimond argued that despite the Metlakatlans worthiness for citizenship, “under existing law, however, it appears to be impossible for those who migrated from British

Columbia to become citizens.” Thus, while the narrative of legitimate civilized settlement constructed around the Metlakatlans since their emigration had rendered the Metlakatlans legible as indigenous people in that they secured land and a relative degree of sovereignty over their community, this legibility as Indians, though “foreign Indians,” had excluded them from citizenship. Dimond petitioned lawmakers and numerous federal departments on behalf of the bill, though his efforts were met with concern as to whether or not, in the climate of immigration restriction in the United States since the 1924 Johnson-Reed

Immigration Act, the admission of the Metlakatlans to citizenship would set an undesirable precedent. The Department of Labor responded to a request of the Committee on Indian Affairs for an opinion on the legislation, stating that “the advisability … of declaring groups of persons in the States or Territories to be citizens, without the

49 A.H. Ziegler to Anthony Dimond, December 14, 1932, File 1, Box 1, Series 1, Anthony Dimond Papers, Rasmuson Library, University of Alaska Fairbanks Arctic and Polar Regions Archives 50 Anthony Dimond to Theodore Christenson, Wilburn Cartwright, Theo Werner, Members of the Sub- Committee of Committee on Indian Affairs, March 1t6, 1934, File 1, Box 1, Series 1, Anthony Dimond Papers, Rasmuson Library, University of Alaska Fairbanks Arctic and Polar Regions Archives 214

necessity for undergoing the naturalization test for citizenship, is open to question and might establish an undesirable precedent.” He continued that “the clause ‘any and all alien British Columbia Indians who later joined them there’ is sufficiently broad to include perhaps others than those actually contemplated by the bill.”51

Indeed, the bill would not only convey citizenship to the Metlakatlans, but would include any and all British Columbia Indians who at any point in the previous 46 years had entered the territory. In its response to the concerns of McCormack and others, the

Committee on Indian Affairs imposed a time limit, effectively making all Metlakatlans who had come to reside on Annette Island from the time of the first migration in 1887 to

January 1, 1900, citizens. The change, while specific to the Metlakatlan case, reflects anxieties at the time regarding citizenship and immigration. The report included a letter of support for the legislation from Delegate Dimond that conceded that while the he “had first thought of drawing a bill much broader in scope,” upon further consideration “feared that the broader bill would admit to American citizenship many people whom none of us would like to see admitted.”52 Like before, the Dimond included numerous accolades about the “sturdy, industrious, and intelligent” nature of the Metlakatlans and asserted that “the finest concert band in Alaska is composed of the younger natives of

Metlakatla.” Additionally, Dimond praised what he called ‘the best town hall in all

Alaska…which was designed and built entirely by the natives of the community—no

51 D.W. McCormick to Marie Weeks, Clerk, Committee on Indian Affairs, February 15, 1934, File 1, Box 1, Series 1, Anthony Dimond Papers, Rasmuson Library, University of Alaska Fairbanks Arctic and Polar Regions Archives 52 House Report No. 1045, 73rd Congress 2d Session. 215

white man had anything to do with it either architecturally or otherwise.”53 Interestingly,

Father Duncan has completely disappeared from this narrative.

This narrative of civilized settlement became entangled with the legibility of the

Metlakatlans as Indians whose rights to land and resources were guaranteed by that status, despite their foreign origins. The report also contained a letter of support from

Interior Secretary Harold Ickes in which he argued that it was the relationship of the

Metlakatlans to the federal government as Native people that, in fact, entitled them to

“being recognized as citizens of the United States on an equal footing with other Indians in Alaska.”54 Ickes argued that “inasmuch as the older members of this colony were born in Canada they would not be entitled to citizenship, they are under the jurisdiction of the

Office of Indian Affairs; are furnished with school facilities, medical relief, and industrial assistance by the United States Government, through that office” and thus should be entitled to the same status regarding citizenship as other Alaska Natives.55 Dimond had also argued similarly, citing the mere exceptional nature of the situation as a reason to support the bill. He posited in other communications to the committee that “this is the one instance that I know of in our history where a community of Indians from another country having migrated to the United States were granted a special reservation and an effort was made by the Government to assist them.”56 Because there were no other such instances, Dimond assured skeptics that the legislation could not be broadly applied in order to stave off arguments about setting undesirable precedents.

53 Ibid. 54 Ibid. 55 Ibid. 56 Anthony Dimond to Marie Weeks, Clerk, Committee on Indian Affairs, February 23, 1934, File 1, Box 1, Series 1, Anthony Dimond Papers, Rasmuson Library, University of Alaska Fairbanks Arctic and Polar Regions Archives 216

In the context of continued denial of Alaska Native rights to land, resources, and sovereignty, this logic of the Interior Secretary and the Territorial Delegate is particularly telling. Dimond worried that “all other Indians in Alaska, whether able to read and write or not, and no matter what their circumstances are, are citizens” and that this was unjust to “these Metlakatlans who are especially well qualified to perform the duties of citizenship.”57 The committee also reported that one of the primary motivations for the bill from the Metlakatlan community was that in addition to Ickes arguments that the

Metlakatlans were under the jurisdiction of the OIA, “it appears that under the laws with respect to fishing, hunting, and trapping in the Territory of Alaska and the waters thereof, citizens of the United States are entitled to certain privileges denied to aliens either in whole or in part.”58 At stake, then, was the ability of Metlakatlans to pursue rights to resources that, at least to some degree, were not protected by their exclusive reservation and otherwise had to be accessed through citizenship, effectively achieving a synthesizing of the rights of citizenship and the rights of sovereignty that territorial and federal officials had been and would continue to deny to Alaska Natives. (Discussed in chapter 5) This exceptional status and its implications for Alaska Natives was not lost on

William Paul Sr., Tlingit attorney, territorial legislator, and Alaska Native rights activist.

He had responded to an inquiry of Dimond’s regarding the bill with skepticism, arguing that the Metlakatlans ought not to have special legislation, but that they should be eligible

“to become citizens on application under our general laws for naturalization…This same condition applies to the members of the Haida tribes who have come over or desire to

57 Anthony Dimond to Marie Weeks, Clerk, Committee on Indian Affairs, February 23, 1934, File 1, Box 1, Series 1, Anthony Dimond Papers, Rasmuson Library, University of Alaska Fairbanks Arctic and Polar Regions Archives 58 Ibid. 217

come over from Queen Charlotte Islands” in British Columbia. He underscored the foreign status of the Metlakatlans and their relation to Alaska Natives by pointing out that allowing the Metlakatlans special consideration “leaves the question of their fealty uncertain. The Metlakatlans for instance are constantly going back and forth” and “they can be citizens here and there changing as they would their coats.”59 The tensions inherent in the settler narrative of Metlakatlans as “foreign Indians” were not lost on

Paul.

Despite Paul’s concerns and the implications the citizenship act had for Alaska Native rights as indigenous Alaskans and as U.S. citizens in terms of access to land and resources, the bill passed and was signed into law in May, 1934. Just a few short years later, the narrative of Metlakatlan migration and settlement would underscore yet another settler imperial project that, while ultimately did not come to fruition, drew into focus the relationship of the territory of Alaska to the United States along the fault lines of citizen and settler.

Another Settler Refugee Narrative and the Management of National Space

Just a few short years after Congress made Metlakatlans citizens, the United States— and the world—faced a crisis of violent religious persecution and resettlement politics in which Alaska would figure prominently. In the wake of Hitler’s rise to power in

Germany and the commencement of WWII the United States found itself in a humanitarian crisis as thousands upon thousands attempted to flee the spreading violence in Europe. This presented a particular quagmire for the U.S. as federal officials had

59 William Paul to Anthony Dimond, June 12 1933, File 1, Box 1, Series 1, Anthony Dimond Papers, Rasmuson Library, University of Alaska Fairbanks Arctic and Polar Regions Archives 218

sought to establish a hegemony based on ideas about American exceptionalism, democracy, and freedom. Now, in this time of crisis, immigration law in the U.S. and public sentiment against immigrants compounded by economic depression tied the hands of officials seeking to uphold the image of the United States as a benevolent world leader by solving the urgent refugee crisis.60 Recognizing the limits of U.S. immigration policy, officials in the Department of the Interior sought spaces in which these laws could be more flexible or construed such that they may not apply. Barely one week after the Night of Broken Glass, Congressman Charles A. Buckley (D-New York) wrote the President suggesting that Alaska might be used for refugee settlement and offered to draw up legislation for such purposes. Roosevelt rejected the proposal on the grounds that it would “make Alaska a foreign territory for immigration purposes,” and was therefore out of the question.61 The President’s response and the State Department’s resistance to the proposal did not stop further inquiry, and it is here that narratives of settlement and the legacy of Metlakatla expose contradictions in understandings of Alaska’s relationship to the U.S., revealing the contingency of territories and possessions in the project of state formation and empire building.

The refugee crisis in Europe occurred at an important moment in government policy toward Alaska. In 1934 in the midst of the Great Depression, the Roosevelt administration had relocated roughly 200 midwestern farming families to Alaska in an attempt to alleviate the affects of the economic crisis. In addition to solving economic issues, officials designed the Matanuska Valley Colonization Project in the hopes of

60 See Henry L. Feingold, The Politics of Rescue: The Roosevelt Administration and the Holocaust 1938- 1945 (New Brunswick: Rutgers University Press, 1970); David S. Wyman, Paper Walls: America and the Refugee Crisis 1938-1941 (Amherst: University of Massachusetts Press, 1968). 61 Wyman, Paper Walls, 99. 219

adding to Alaska’s small population of permanent white residents who could develop the territory’s agricultural potential and attract further settlement. In reality, however, the

Matanuska Colony seemed doomed to failure. Poor planning and execution left many colonists disheartened, angry, in debt, and desperate. While some remained, many left the colony, returning to the contiguous states or moving to other parts of the territory. For these reasons, the government and many Alaskans considered the project a failure.62 The narrative of the colony’s failure coupled with the narrative of Metlakatla’s success became crucial elements in the development of plans to use territories as possible solutions to Europe’s refugee crisis.

In 1938 and 1939, Felix Cohen and other Interior Department officials had begun drafting legislation that would allow the resettlement of European refugees in the territory of Alaska by creating a new class of non-quota immigrant63. Additionally, the

Department of the Interior began an investigation into the feasibility of such a plan and released their conclusions in a report called The Problem of Alaskan Development, sometimes referred to as the Slattery Report after Undersecretary Harry Slattery. The report represented an attempt by the Interior Department to combine the problem of

Alaska’s stymied settlement as the “last frontier” and the problem of Europe’s refugee crisis. Though totaling only sixty pages, the report addressed a number of perceived problems regarding the slow and uneven pace by which Alaska was becoming populated, leaving its tremendous capacity for industrial production untapped. Among the

62 Though, in terms of settler colonialism, the project was hardly a failure. Many colonists simply moved to the neighboring town of Palmer and took up their own vocations. 63 At the time, non-quota immigrants were those who qualified in one of the following ways: an immigrant who is the unmarried child or wife of a U.S. citizen, an immigrant previously lawfully admitted to the United States, an immigrant born in Canada, Newfoundland, Mexico, Cuba, Haiti, the Dominican Republic, the Canal Zone, or an independent country of Central or South America, ministers, teachers and students. 220

“obstacles to Alaskan development” were such issues as the Spanish flu, the high cost of living, unbalanced employment, the pervasive myth of Alaska as “The Frozen Waste,” man-eating animals, frozen soil, and mosquitos.64 Among these deterrents to settlement in Alaska was a particularly large section entitled “The Effects of Immigration Laws.”

The Department alleged that while “Americans with adequate capital do not ordinarily have any urge to settle in Alaska […] there have always been Europeans who had both the means and the urge to start a new life in that territory.”65

In other words, Americans who only a generation ago had bemoaned the closing of the “frontier” were not interested in doing the work of frontier business. Doubly frustrating were the immigration laws that had devastated settlement of Alaska: in 1930, the report alleged that prior to the 1924 act, 35% of Alaska’s white population were foreign born immigrants—roughly 5,797 entering in the first 24 years of the century.

However, in the six years since “only 253 foreign-born immigrants, an average of 42 per year, entered Alaska.” Under these circumstances, the report argued that “whatever justification there may be for the present quota laws with respect to the settled areas of the United States, application of the same yardstick to an under-populated territory whose future well-being depends on new immigration and new capital is extremely questionable.”66 The report then outlined the pros and cons of “two styles” of “planned immigration” that accomplished through the Matanuska Valley Colonization Project and that of “the refugee industrial community of Metlakatla.”67 While focusing on the colonists who had in fact remained with the Matanuska Colony project and had seen a

64 United States Department of the Interior, “The Problem of Alaskan Development” (Washington, 1940) pp. 9-41. 65 Ibid. 9 66 Ibid. 9 67 Ibid. 44 221

somewhat successful agricultural season, the report conceded that it had only been possible at great expense and supervision of the federal government.

A more economical approach, then, would be to model immigration after the

Metlakatlan “refugee colony” that was “launched without any Government subsidy” and had developed into “probably the most prosperous municipality in the country.”68 In this characterization, the report did two things—it elided the role of the federal government in subsidizing Metlakatla through the land granted to the Metlakatlans in the creation of their reservation. Second, it reaffirmed the narrative of “civilized settlement” that had been crafted in support of Metlakatlan immigration fifty years prior. The report went on to praise Metlakatla as an “outstanding example in recent times of a successful refugee colony.” By framing Metlakatla this way context of Matanuska’s struggles, the report drew some important and telling conclusions: Metlakatla as opposed to Matanuska demonstrated that successful colonization was more probable with “a group of human beings bound together by a common tragic experience and by common ideals” rather than those “who can go back to a more or less comfortable existence if they tire of Alaska.”69

The type of settlement represented by Metlakatla, recommended the report, should get the government’s utmost support. The report then described how the creation of public purpose corporations could be used to facilitate settlement and made recommendations as to the selection of settlers. While sincere attempts should be made to “find qualified

American citizens,” it was inevitable that these development corporations “will have to

68 Ibid. 44 69 Ibid. 48 222

look for skilled workers in foreign communities” and that some practical way of allowing this kind of immigration ought to be developed.70

By leveraging the success of Metlakatla in support of relaxing immigration laws in territories, the authors of the report made some important and telling elisions. First, they contended that Metlakatla had not been subsidized by the federal government in the same way that Matanuska had. Second, they sought to dispel the argument that “Metlakatla was able to succeed because it was given valuable fishing rights.” In this instance, the federal government denied the relevance of particular rights in land and access to fish along with government schools that it had gone out of its way to establish and protect in the decades prior and that were based on the legibility of Metlakatlans as Indians. In doing so, they removed important questions about colonialism, settlement, and the rights of Alaska Natives. Thus, the Metlakatla narrative worked to naturalize U.S. colonization of Alaska.

In the spring of 1940, the designs of The Problem of Alaskan Development found their legislative expression when Senators William H. King and Franck Havenner introduced H.R. 3577 “A Bill to Provide for the Settlement and Development of Alaska.”

The bill sought to employ federally chartered public purpose corporations to recruit and certify settlers. Settlers could be selected from the U.S. citizenry, though the controversy arose because the bill also permitted the corporations “to certify as settlers persons not ineligible to citizenship […] as non quota immigrants […] solely for entry into and residence in the Territory of Alaska.”71 The conditions of these non-quota visas stipulated that the immigrants must reside in the Territory of Alaska for five years, at which time

70 Ibid. 53. 71 H.R. 3577 223

they would be eligible for reclassification as a quota immigrant “if the quota for that year has not otherwise been filled.” If anyone who had entered the territory of Alaska as a non-quota immigrant attempted to travel to the contiguous states, he would be subject to deportation.

In May of that year, the bill was sent to the Senate Subcommittee on Territories and

Insular Affairs where it faced strong objections from senators concerned that immigrants would compete with American citizens for badly needed jobs and from representatives from Alaska including Territorial Delegate Anthony Dimond who worried about the implications the designation of Alaska as essentially exempt from immigration law could have for the territory. The King-Havenner bill has been the topic of a handful of historians and journalists who characterize its failure to become law as an epic failure on the part of Alaskans and Americans to intervene and rescue desperate people from violence and certain death.72 That is indeed an accurate depiction of the bill’s failure.

However, I contend that the debates also do something else; they reveal the tensions of state making and empire building and the ways in which the federal government managed territories to these ends. These projects were contingent on the erasure of Alaska Native struggles for citizenship, land, and sovereignty.

At the hearings, Interior Secretary Harold Ickes was the first to testify, and he urged the committee to pass the bill on a number of grounds. He encouraged the committee members to refrain from making any decisions on a humanitarian basis, as he understood

“the word ‘humanitarian’ is in bad odor these days.” Rather, he contended that the first and foremost reason for adopting the legislation was that an increased population in

Alaska would “be promptly reflected in a proportionate expansion of the Alaskan market

72 See Tom Kizzia’s four piece series in the Alaska Dispatch News from 1999. 224

for American products.”73 Whether Ickes was simply attempting to distract the committee from the humanitarian aspects of the bill in the current refugee crisis can’t be known for certain, but the priority given to the need for markets—indeed he mentioned that “in

1939, Alaska purchased more goods from the United States than 23 of the 31 European countries”—reflects important concerns about the effects of the war on American export markets. By essentially bringing those markets to the territory where they could still be consumers as opposed to remaining in war torn Europe where they could not, would provide economic stability and ensure that the United States emerged from the global conflict practically unscathed. Given U.S. global economic objectives at the close of

WWII, this logic of the bill demonstrates the ways in which territories could be used in the maintenance and projection of U.S. economic hegemony.74

Ickes also recommended the bill on grounds that it would provide jobs for American citizens because according to the legislation, fifty percent of the certified settlers for any corporation were required to be from the American citizenry. He then turned his attention to concerns about immigrants. Indeed, in preparing the bill even Felix Cohen found it necessary to defend its merits to his own father who was President and founding member of the Conference on Jewish Relations, against concerns that it would never pass ‘if it includes provisions establishing a new quota-exempt category.”75 Ickes thus defended the bill by appealing to narratives of American exceptionalism. He began by characterizing

Alaskans as “tolerant and democratic a group of human beings as exist anywhere in the

73 Hearings before a subcommittee of the committee on Territories and Insular Possessions, Senate, 76th Cong., 3rd Sess., May 13, 14, and 18th, 1940, 7. 74 See Victoria de Grazia, Irresistible Empire: America’s Advance through Twentieth-Century Europe (Cambridge: Belknap Press of Harvard University Press, 2006). 75 Felix Cohen to Morris R. Cohen, July 23, 1939, Felix Cohen Papers, Box 18, File 307, Beinecke Rare Book and Manuscript Library, Yale University, New Haven, Connecticut. 225

world.”76 Significantly, his statement here completely elides the decades long Alaska

Native struggle for voting rights and equal citizenship that would culminate at the close of the war with the passage of anti-discrimination legislation by the territorial legislature.

This omission was important to the narrative of settlement that Ickes and supporters of the bill wished to exploit—that the U.S. could deliver on the promises of tolerance and democracy awaiting anyone who arrived at its doorstep. This narrative was contingent on the erasure of Native rights and the fact that immigrants would be kept outside of the U.S. proper.

Despite Ickes’ encouragement to refrain from interpreting the bill as a humanitarian measure aimed at relaxing immigration restrictions, protesters of the bill continued to assert that its provisions effectively made Alaska a back door to U.S. immigration laws.77

Ickes instead insisted that “this bill does not lower or eliminate a single qualification for admission that is now contained in our immigration laws. On the contrary it adds new qualifications” such as proof of the ability to thrive in conditions that one would find in

Alaska.78 Committee members worried that there was no way to prevent any of the non- quota immigrants from entering the contiguous states and that once there it would be nearly impossible to identify them and to deport them. They decried the inhumanity of the possibility of deporting these immigrants back to countries which they had fled under fear of violence or death—to them it was better not to let them in at all. Furthermore, many contended that the requirement of the bill that the non-quota immigrants remain in

Alaska for a minimum of five years before eligibility—but no guarantee—for conversion

76 Hearings before a subcommittee of the committee on Territories and Insular Possessions, Senate, 76th Cong., 3rd Sess., May 13, 14, and 18th, 1940, 8. 77 Ibid. 92—Senator Reynolds 78 Ibid. 8 226

to a quota immigrant was itself inhumane and unconstitutional. Alaska Territorial

Delegate Anthony Dimond testified about his fears that the bill was “written around the provision for bringing into Alaska, and simultaneously barring from entry into the United

States, non quota immigrants.” He read from a letter he had written to Senator Millard

Tydings who had previously requested his opinion on the legislation, stating “to do what is proposed to be done” by the bill “would be resented by all of the people of the territory for they would feel that Alaska is being made into a sort of concentration camp or semi- penal colony.”79

Dimond was perhaps not so concerned with the rights of non-quota immigrants, but with the rights of American citizens residing in Alaska and the implications for Alaska’s relationship to the United States. He protested that “anyone traveling from Alaska to the

States would be obliged to show that he was not a member of one of the restricted alien settlements…and that would be considered intolerable.” To Dimond, the abridged rights of non-quota immigrants along with the burden the bill would place on Alaskans who were U.S. citizens would set a dangerous precedent. Interestingly, Interior Secretary

Ickes—perhaps anticipating such objections—had set forth in his testimony evidence that the King-Havenner bill was, in fact, not precedent setting but that there was already an established provision “with regard to immigration into our Territories, as for example, the admission to the Territory of Hawaii of immigrants not entitled to enter the continental

United States when the Secretary of the Interior finds that industrial conditions in that

Territory so warrant.”80 Likewise, the unincorporated territory of the Virgin Islands was also in the complicated process of hashing out the rights of immigrants and relationship

79 Ibid. 231 80 Ibid. 9 227

of territories to immigration law after the Legislative Assembly of the Virgin Islands enacted “A Resolution Offering the Virgin Islands of the United States as a palace of

Safety for Refugee Peoples” in November of 1938.81 The resolution drew contradictory opinions from the State Department, the Interior Department, and the Department of

Labor. The contention around the ways that territories might be used exemplifies the tangled processes of the management of national boundaries at the edges of empire.82

This is perhaps what alarmed Dimond and other opponents of the bill even more than their concern with the rights of refugee peoples. Dimond argued that the practice of admitting persons not eligible for citizenship would “set [Alaska] off from the rest of the

Nation as a sort of special land where people may reside who are not citizens and who are not permitted to be in the remainder of the United States.”83 While historians have pointed out Dimond’s objections before, they have not done so in the context of the ways in which territories were understood by federal officials as central to imperial projects and the projection of U.S. hegemony. In this way, these debates reveal historians’ understandings and Dimond’s assumptions of a statehood trajectory for Alaska and the tensions and contingencies in the negotiation of the role of territories that complicates this understanding. The national defense and economic market underpinnings of the bill, however, reveals divergent understandings of territories among federal officials.

The King-Havenner bill died in committee, but the following year Congressman

Samuel Dickstein (who would play a key role in forming the future House Committee on

Un-American Activities) introduced another bill with what he perhaps understood to be

81 Frederic L. Kirgis to Harold Ickes, August 9, 1940, File 554, Box 36, Series 1, Felix Cohen Papers, Beinecke Rare Book and Manuscript Library, Yale University, New Haven, Connecticut. 82 See Duffy Burnett “The Edges of Empire and the Limits of Sovereignty” 83 Ibid 230 228

more explicit objectives of national defense and the need for overseas markets. H.R.

2791, “A bill providing for the utilization of unfilled immigration quotas in order to colonize Alaska for purposes of national defense and as a market for surplus production” sought to once again provide a way to allow immigrants otherwise excluded by immigration law in the contiguous states to settle in Alaska. The Dickstein bill sought to combine “the total of unused quotas of all countries for the past six years” which would be “designated as available and issued to immigrant colonists” who “shall henceforth be granted admission into Alaska.”84 The bill contained a similar provision to its predecessor in that “no such immigrant colonist shall be permitted to emigrate to the continental

United States for at least five years.”85 This plan may not appear to be particularly significant until one takes into account the number of unfilled quotas that would be made available for Alaska. The number of unfilled quotas from 1935-1940 totaled 702,107 and according to committee testimony, that number of unfilled quotas was what remained out of a possible total admission of 922,644, meaning that in the past six years, only 220,537 quotas had been filled. The bill, then, represented the authorization of a massive migration to the territory of Alaska. To put things in perspective, the population at the time was roughly 76,000, of which about 35,000 were Alaska Natives. Alaska’s population as of 2014 was only 736,732.

These numbers along with the implications of both bills speak broadly to the understandings of the relationship of territories to the United States. The two bills—S.

3577 and H.R. 2791—essentially sought to relocate markets from war-torn Europe to a

U.S. territory where they could continue their function in supporting the ongoing

84 H.R. 2791, 77th Cong., 1st Sess. 85 Ibid. 229

development of U.S. economic hegemony. By maintaining Alaska as quasi-national space and maintaining immigrants as quasi-citizens, territories could sustain and extend these economic and military objectives under the guise of settlement, demonstrating the productive nature of the tensions that emerge in the entanglement of settler colonial and imperial projects. The Committee on Immigration and Naturalization held hearings in

March of 1941, in which similar issues to S. 3577 were raised, and major objections centered on the constitutionality of confining aliens to Alaska, the setting apart the territory as “an area to which aliens may be admitted, but cannot come to other parts of the United States,” and the probability that the settlers would inevitably become public charges.86 While the bill, like S. 3577 died in committee, the debates surrounding refugee settlement in Alaska reveal the capillaries of empire and state formation, the dead ends, the gaps, and the tensions between and among various policies which in turn expose the possibilities that “incorporated” territories hold for settler colonial and imperial projects.

Internees: Refugee Narratives in the Pribilof Islands, Extractive Colonialism, and the Violent Disavowal of Sovereignty and Citizenship

The third and final fault line I wish to trace in this chapter is that of the Aleuts of the

Pribilof Islands. Their trajectory within the legal and bureaucratic frameworks of settler imperialism in Alaska complicates further the narratives of indigeneity, settlement, citizenship, sovereignty, and Alaska as within or outside of national space. Juxtaposed with Metlakatla and ideas about immigrant colonies, the disavowal of Aleut sovereignty and citizenship rights is even more glaring especially when taking into account the function of narratives of refugee status that circulated in relation to Metlakatla and

86 Ibid. 230

European refugees in WWII. Publicly, the federal government framed the removal of

Aleuts from the Pribilof Islands as an evacuation as necessary for their safety (a kind of refugee narrative). Racial, military, and political motives underscored the operation and the treatment of Aleuts during their internment.87 In addition to this, I would like to suggest that the distinct nature of the relationship of Pribilof Aleut sealers to the various federal bureaucracies that managed sealing operations speaks to the cleavages in policies directed at Alaska Natives by the federal government and that this is reflected in the politics of internment and nature of settler imperial space.

While Alaska Natives in southeast Alaska and the mainland for the most part came under the jurisdiction of the Bureau of Education in the late nineteenth century,

Pribilof Island Aleuts followed a decidedly different trajectory that forms an integral part in the settler imperial apparatus in Alaska. Under Russian rule, Russian fur sealers transplanted Aleuts from the Aleutian Islands to the Pribilofs located several hundred miles north of the Aleutian chain in the Bering Sea where they endured decades of forced labor in the fur sealing industry. The Pribilof Islands are the location of the largest fur seal breeding grounds in the Pacific Ocean, and during the purchase of Alaska from

Russian, American officials described the Pribilof Islands of St. Paul and St. George as

“the most important of all the late possessions of Russians in America.” 88

87 Dean Kohlhoff, When the Wind Was a River: Aleut Evacuation in World War II (Seattle: University of Washington Press, 1995), 69; Tuck and Yang, “Decolonization is not a Metaphor;” 88 Cong. Rec. 40th Congress, 2nd Sess. Misc. Doc. No. 131 231

After the 1867 purchase the United States leased the islands and the fur sealing operations to the Alaska Commercial Company. Based in San Francisco, the company essentially “inherited” the compelled labor of Aleut sealers whose residency on the island was characterized by virtual imprisonment. After the twenty year lease ended in 1910, fur sealing operations and the administration of fur sealing Aleuts was transferred to the

Department of the Treasury Bureau of Fisheries where it remained until 1940 when the newly created Department of Fish and Wildlife (under the National Oceanic and

Atmospheric Administration) assumed responsibility for the administration of the islands,

Aleut laborers, and the sealing operations they supported.89 In contrast and discussed in chapter 3, Alaska Native affairs had been administered under the Bureau of Education and then transferred to the Bureau of Indian Affairs in 1931. While the legal relationship of Alaska Natives under both of these bureaucracies alternately converged and diverged with American Indian policy generally, the relationship of Pribilof Aleuts is arguably situated in even further contrast. By tracing the administrative trajectory of sealing

89 Dorothy Jones, A Century of Servitude: Pribilof Aleuts Under United States Rule, (Lanham: University Press of America, 1982); Ryan Madden, “The Government’s Industry: Alaska Natives and Pribilof Sealing during World War II,” The Pacific Northwest Quarterly, Vol. 91, No. 4 (Fall, 2000), 202-209. 232

exposes settler imperialism at work in one of its most violent manifestations in Alaska.

Through the violence of compelled Aleut labor, the federal government had found the means to provide funding for the administration of the territory as a whole. To this end,

Aleut sealers were held captive on the islands, not permitted to leave without special permission, fined or punished if they protested working conditions or refused to perform their assigned duties, which only served the purposes of the Alaska Commercial

Company and the federal government in the appropriation of one of the Aleuts’ primary economic resources.90 The narrative of Aleut evacuation from the islands under the auspice of wartime exigencies juxtaposed with narratives of refugee settlement of

Metlakatlans and Europeans further exposes how the legal distinctions created between

Alaska Natives and American Indians in the contiguous states functioned in the settlement and resource extraction projects in the territory.

In 1868, Secretary of War McCulloch wrote regarding the urgency with which the federal government ought to protect the seal populations of the Pribilof Islands. He argued that “the protection of the fur-bearing animals is a matter of importance hardly to be overrated.” He cited that stringent regulations were necessary for economic purposes and that such regulations were “a matter of life or death to the natives.”91 Dubiously alluding to Pribilof Aleuts as willing wage earners in an economically valuable undertaking, McCulloch mused that without the employment opportunities made possible by the sealing industry, the Aleuts would suffer greatly. He contended that “the United

States can not, of course, administer such a trade as a Government monopoly, and the only alternative seems to be to grant the exclusive privilege of taking these animals to a

90 Ibid. 91 House Document 3883, 3. 233

responsible company for a series of years limiting the number of skins to be taken annually by stringent provisions.”92 Two years later, the federal government awarded that exclusive privilege to the San Francisco based Alaska Commercial Company whose representatives had lobbied officials in Washington for years for a contract to administer the seal islands.

The initial legislation regarding the islands and the contract of the lease of the

Pribilof Island sealing rights is telling. The first laws applied by Congress to the newly purchased territory of what is now the State of Alaska were those regarding customs and commerce regulations. Discussed at length in chapter one, those regulations—despite their commerce regulatory objectives—were found not to designate the territory as

“Indian Country,” a decision that had profound settler imperial legal implications.93 That same day, Congress also approved a bill prohibiting the killing of “any otter, mink marten, sable, or fur-seal, or other fur-bearing animal within the limits of the Alaska

Territory,” and obliging the Secretary of the Treasury to prevent the “killing of any fur- seal.”94 Just one year later, the Pribilof Islands were designated a “special reservation for government purposes; and until otherwise provided by law it shall be unlawful for any person to land or remain on either of those islands, except by the authority of the

Secretary of the Treasury.”95 On July 1, 1870, however, Congress approved the harvesting of seals by Native people for their own use for clothing, food, and boats under

92 Ibid. 4 93 Revised Statutes Section 1954 July 27, 1868, c. 273, s. 1, v.15 p. 240. 94 Revised Statutes section 1956, July 27 1868, c. 273, s. 6, v. 15, p. 246. 95 Revised Statutes Section 1959 March 3, 1869, res. No. 22, v. 15, p. 348. 234

the supervision of the Secretary of the Treasury, along with a provision that allowed the rights to take seal to be leased, with a limit of 25,000 skins imposed.96

The federal government then leased the islands to the American Commercial

Company stipulating that for the following 20 years, the Company may exercise the exclusive right to “engage in the business of taking fur-seals on the islands of St. George and St. Paul within the Territory of Alaska, and to send a vessel or vessels to said islands for the skins of such seals.” For this right, the Company would pay $55,000 per year along with a “revenue tax or duty of two dollars upon each fur-seal skin taken and shipped by them” and “to furnish, free of charge, the inhabitants of the islands of St. Paul and ST. George annually during said term, twenty-five thousand dried salmon, sixty cords firewood, a sufficient quantity of salt, and a sufficient number of barrels for preserving the necessary supply of meat.” Additionally, the Company was required to

“maintain a school on each island.”97 The designation of the administrative affairs for

Aleut sealers to an extra-governmental entity added yet another legal tension that would deepen in subsequent decades. Two years later, Commissioner of Indian Affairs Francis

Walker made the fundamental decision to refrain from extending BIA oversight to Native affairs in the territory, citing ethnical differences between Alaska Natives and “Indians of the continent.” As we have seen, these divergences gave rise to conditions under which territorial and federal officials along with corporate interests could commence with resource extraction in Alaska without reckoning with Alaska Native sovereignty and land ownership. In the case of Metlakatla, the Pribilof Islands, and European excess quota refugees, the gaps in law and policy that these distinctions created allowed for the

96 Revised Statutes Section 1963 July 1, 1870, c. 189, ss. 4,5, and 6, v. 16, pp.180-181. 97 Lease from the United States to the Alaska Commercial Company of the Right to Take Fur-Seals in Alaska—Delivered August 31, 1870. 235

scripting of Alaska as a place inside and outside the U.S. proper. This allowed for immigrant populations—Tsimshian, indigenous to North America but considered immigrants because of their crossing the strategically mapped borders of settler states— to be classified as “foreign Indians,” and to then secure an Indian reservation and de facto immunity from every other piece of legislation affecting Alaska Natives. As we have seen, the ways federal officials made the Metlakatlans legible to their understandings of

Alaska was to craft a narrative of “civilized settlement” that their “foreignness” made possible. This narrative of their arrival in Alaska was then deployed to support Alaska exemption from twentieth century immigration legislation and to allow the settling of

European refugees fleeing the ravages of WWII to settle in the territory while Aleut sealers—U.S. citizens—were “evacuated” and interned on account of the inability of U.S. military officials to distinguish them from the Japanese. In this case, concerns over foreignness rendered Aleuts—an indigenous nation and people—as outside the parameters of U.S. citizenship and recognition of indigenous nationhood constructed by the federal government in order that both corporate entities and the federal government could violently exploit seal resources with forced Aleut labor.

Whatever narrative U.S. officials wished to craft regarding the legal, social, and economic affairs on the Pribilof Islands, Aleut resistance was evident from the very beginning. In a letter to Treasury Secretary George Boutwell in May 1869, Special Agent

H.H. McIntyre (name somewhat illegible) related that he thought the Aleut a “quiet, well- behaved, and inoffensive people,” though noting that he suspected that they would “not

236

hesitate…to use force in securing their rights.”98 Furthermore, in a letter May 12 of that year, he remarked how it was nearly impossible to prevent “the killing of sea-otters during the coming season by the natives of this territory” and more than once the quota of seals had been raised on account of Aleut protests at the restrictions.99 Additionally, after the commencement of ACC control over the Islands, they fulfilled their obligations to the federal government and established schools in both St. Paul and St. George. By 1873, however, Treasury agents overseeing activities “began to complain about increasing

Aleut resistance to the American schools,” as Aleut parents protested learning English as opposed to Russian and feared their children’s separation from the Russian Orthodox

Church.100 The punishment, as Dorothy Jones’ research has shown, became increasingly cruel and violent. One Aleut parent who withdrew his son from these systems of compulsory education was imprisoned in the cellar of the company’s house “a very cold, damp place, and kept him four days on bread and water, and during all this time the son had been confined in a dark closet in the company’s house and kept on bread and water.”101

Likewise, a number of newspapers in the states seemed to take an interest in the monopoly of the ACC and the slavery-like conditions of Aleut. In February of 1885, one

Agapius Honcharenko published a brief article in the Liberty СВОБОДА and Alaska

Herald, entitled “An Appeal to Humanity.” The article included a number of clips from various contemporary news sources that bemoaned conditions on the Pribilof Islands in

98 H.H. McIntyre to George Boutwell, May 31, 1869, Alaska File of the Special Agents division of the Department of the Treasury, 1867-1903, microfilm roll 1, National Archives and Records Administration, Washington D.C. 99 H.H. McIntyre to I.F. Miller, May 12 1869, Alaska File of the Special Agents division of the Department of the Treasury, 1867-1903, microfilm roll 1, National Archives and Records Administration, Washington D.C. 100 Dorothy Jones, A Century of Servitude, 28. 101 Ibid, in which she cites H. Exec. Doc. No. 83, p. 133. 237

which “the republican Government liberated the negroes and enslaved Russians in

Alaska.”102 He claimed that they had petitioned the federal government several times, pleading that “we are the slaves of the lessees, and at their mercy…The employees of the

Miller Company [General J.F. Miller was president of the ACC] often beat, and violently assault us, threatening to drive every Aleut from the Island,” and they begged the federal government to regard them “as fellow citizens” in need of protection.103 The veracity of the charges were disputed in subsequent Congressional hearings, however the federal government awarded the lease to a different company at the end of the ACC’s twenty year term. The North American Commercial Company’s lease ended in 1910, and the federal government declined to issue another, and assumed complete federal jurisdiction.

During the era of federal rule, anthropologist Dorothy Jones importantly notices that the legal status of Pribilof Aleut began to shift. In her book, A Century of Servitude:

Pribilof Aleuts Under U.S. Rule, she notices that after 1891 when the federal government ceased leasing the islands to private corporations, documents within the Department of

Treasury (the department that had overseen the operations of private corporations from the beginning) first began referring to Pribilof Island Aleuts as wards of the federal government. This trend increased in frequency throughout the early 20th century, however

Jones mused that unlike the legal constructions in the contiguous states, Congress never legislated any regulations to suggest that relationship and Justice Department had declared that “Alaska Indians are not wards of the government within the meaning of the

102 The reference of “enslaved Russians” likely refers to Aleut sealers. Liberty СВОБОДА and Alaska Herald, February 2, 1885, 31 M430 Interior Department Territorial Papers: Alaska, 1869-1911, Reel 1, National Archives and Records Administration, Washington, D.C. 103 Ibid. 238

court cases applying to Indians in other parts of the United States.”104 She concludes that this language functioned to deny the Aleut any kind of status as citizen wage earners.

Jones recognized that these legal ambiguities were important, and I contend that they were part of a much broader structure of settler imperialism as it was developing at the edges of empire. What this important ambiguity also allowed was for the Treasury

Department to articulate the legal status of Pribilof Island Aleuts as “virtual wards of the government,” a legal category that could allow federal authority over Aleut affairs similar to that in the contiguous states while avoiding trust and sovereignty obligations associated with Indian status as it was generally understood.105 While Jones is right to critique the ways this abrogated the citizenship rights of Aleut sealers and Indians in the contiguous states, she loses sight of how these ambiguities simultaneously obscure Aleut sovereignty and nationhood and in doing so, territorial and federal officials and corporate interests such as the ACC are able to hold in perpetual tension the legal frameworks of citizenship and sovereignty, of settler colonial policy and imperial ambitions.

The way the ambiguities constructed around the legal status of Pribilof Aleut facilitated their exploitation by the ACC, NACC, and the federal government and is reflected in the latter’s exercise of complete authority over Aleut bodies as a fundamental element of securing profits from sealing. The agents on the island sought to keep the community of sealers wholly isolated from non-residents of the island and closely restricted their comings and goings, especially of women. At least by the 1930s, and likely earlier, the Division of Alaska Fisheries had begun a policy of banishing Pribilof

104 R. F. Roth, United States Attorney, to Governor Thomas Riggs, May 13, 1921, quoted in Dorothy Jones, A Century of Servitude, 45. 105 War T. Bower, Chief, Division of Alaska Fisheries to Fredericka Martin, September 29th, 1942, Fredericka Martin Records, cited in Dorothy Jones, A Century of Servitude, 45.

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Aleut women from the islands if they married non-Pribilof native or non-native men.106

Furthermore, when Pribilof Island Aleuts were forcibly evacuated from their homes in

1942 and relocated to Funter Bay, an abandoned cannery, the federal government likewise attempted to maintain their isolation by interfering in their attempts to find work in nearby Juneau and by preventing them from joining the armed forces on account that they were government wards.107 Dozens of Aleut died in the deplorably unsanitary and dilapidated condition of the camps and, perhaps most abhorrently, in 1943 many of them were forced to return to St. Paul to prevent further loss of revenue from the sealing seasons. If they refused, federal officials threatened to never allow them to return to their homes on the islands.108

Discussions among territorial and federal officials concerning the 1943 sealing season and the internment of Pribilof Island Aleuts are telling. In November, 1042,

Interior Secretary Harold Ickes complained bitterly that “on June 16, without consulting me or any officials of this Department, our armed forces evacuated 468 natives and 20 supervisory employees of the Fish and Wildlife Service…from the Pribilof Islands.”109 (It is important to remember that the white employees and their families were not interned.)

Ickes’ concern, however, was two-fold. His primary concern was the loss of “more than a

106 Correspondence between Ward T. Bower and T.H. Erickson, June, 1939, General Records of the National Oceanic and Atmospheric Administration RG 370, Box 23, “Miscellaneous 1937-38-1939, National Archives and Records Administration, Seattle, Washington, regarding a memo addressing whether or not Pribilof Aleut women who had forfeited their status on the Pribilof Islands when they married outside Native men may return upon the death of their husbands. It appears that it was recommended that these requests be denied. Bower requests clarification. See also, Lee C. McMillin to Anne Whalley regarding McMillin’s lack of authority to decide whether or not to take back to the Pribilof Islands a woman who had also married an outside Native and who desired to return. General Records of the National Oceanic and Atmospheric Administration RG 370, Box 38, “Natives-General 1940-1944” File , National Archives and Records Administration, Seattle, Washington. 107 Jones, A Century of Servitude, 107-118. 108 Ibid. 109 Harold Ickes to Henry L. Stimson, November 1, 1943, RG 370, Box 40, Pribilof Islands Rehabilitation 1942-1945 File, National Archives and Records Administration, Seattle, Washington. 240

million dollars by reason of the discontinuance of operations at the Pribilof Islands.”

Secondarily, and curiously, he argued that the return of “natives and supervisory personnel by Naval transport to the Pribilof Islands next April or May to resume sealing and other operations…will remove the Natives from their present unsatisfactory status as refugees.”110 Ickes’ classification of interned Aleut as “refugees” in which refugee narratives were critical in the development of the settler imperial legal landscape and fundamental in the ongoing discourse surrounding the nature of the relationship of territorial Alaska to the nation proper. The history of Aleut sealing on the Pribilof Islands was the product of uncertainty and ambiguity regarding the legal status of Alaska Natives at the time of purchase in 1867. The relegation of sealing oeprations and Aleut affairs to private corporations arose from and developed part and parcel with these circumstances.

Conclusion

In territorial Alaska, groups of actual or designated refugees strained understandings of indigeneity through Tsimshean legibility to settler logic as “foreign Indians,” immigration law and citizenship through the attempts to relocate European WWII refugees, and the legal relationship of Alaska Natives to the federal government through

Aleut labor and internment. Importantly, these refugee narratives facilitate what Tuck and

Yang describe as the process by which indigenous people are shuffled “between Native, enslavable Other, and Orientalized Other.” By putting Aleut internment and forced labor in conversation with the histories of would-be European refugee settlers and Tsimshean

“religious refugees,” we can see how the deployment of “refugee narratives” by territorial and federal officials, lawmakers, and missionaries (Father Duncan) functioned to elide

110 Ibid. 241

the settler colonial and imperial realities of indigenous slavery, dispossession, and missionary violence.

Equally important, these histories and the narratives crafted about them by these various officials served to deny Alaska Natives their indigeneity and sovereignty. The federal government recognized Tsimshean “foreign Indians” as entitled to land in a reservation and sovereignty over that land—sovereignty that remained untouched by any subsequent legislation or policies regarding Alaska Natives. In this same moment, these same officials relegated Alaska Natives to a position outside of existing legal frameworks of federal Indian law and policy as a way for these officials to avoid reckoning with their sovereignty and ownership of the land. The narrative crafted as justification for

Tsimshean settlement and land was later used to justify proposals to settle European refugees in the territory and buttress United States’ claims to leadership of the free world.

Alaska’s flexibility as a geopolitical space that was neither inside nor outside the nation proper nearly provided a loophole by which those seeking to resettle European refugees could bypass the stringent Reed-Johnson Immigration Act. These debates were taking place in the same moment as Aleut forced labor and subsequent internment, revealing how refugee narratives created fault lines that, when wrenched open under the strain of contradictory settler imperial policies and expectations, subsumed Alaska Native indigeneity and sovereignty. Aleut compelled labor on the Pribilof Islands persisted past statehood in 1959, and the federal government retained rights to lands used for sealing operations in the provisions of the 1971 Alaska Native Claims Settlement Act, revealing the persistence of settler imperial frameworks even after Alaska’s territorial status came to an end.

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Pribilof Island Aleuts who returned to their homes after the war, however, had been exposed to chapters of the ANB and ANS in southeast Alaska during their internment and they took these organizational strategies back with them, incorporating under the IRA in 1950. They continued to work with ANB members in asserting their rights as both U.S. citizens and as indigenous owners of the land. Indeed, in the years of

Aleut internment, the ANB and ANS in southeast Alaska had been increasing their calls for an end to racial discrimination in the territory and mounting an important battle for

Alaska Native land rights through the establishment of Indian reservations. These concurrent efforts brought sharp backlash from white settlers and the commercial fishing industry, whose representatives began using civil rights rhetoric in their efforts to undermine Native land ownership by arguing that their distinct legal status and U.S. citizenship contradicted Alaska Native claims to nationhood and sovereignty and had also had prevented them from experiencing the dispossession that their counterparts in the contiguous states had suffered. By denying recognition of indigeneity and sovereignty and a history of dispossession, white settlers employed both the rhetoric of citizenship and their constructed uncertainties surrounding Alaska Native legal status in the continued development of settler imperialism in the territory.

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Chapter 5: “The Indians of Alaska were not dealt with as tribes”: Civil Rights, Citizenship, and Alaska Native Sovereignty

In December of 1941 Roy and Elizabeth Peratrovich, Tlingits of southeast Alaska and serving as the Alaska Native Brotherhood (ANB) and Alaska Native Sisterhood

(ANS) Grand Camp Leaders wrote to Alaska’s territorial governor, Ernest Gruening, to enlist his aid in their struggle to eliminate Jim Crow in Alaska. They wrote that while a number of non-Native Alaskans may not realize it, “our Native boys are just as willing as the White boys to lay down their lives to protect the freedom that he enjoys” and that “we were shocked when the Jews were discriminated against in Germany. Stories were told of public places having signs, ‘No Jews Allowed.’ All freedom loving people in our country were horrified at these reports, yet it is being practiced in our own country.”1 Like

African Americans, Alaska Native leaders keenly understood the global context of race relations, seeing that a war fought abroad for freedom and democracy was not reflected in the realities at home. These contradictions were especially glaring for Alaska Natives who, again like their African American counterparts, enlisted in the military and then faced prejudice and discrimination in their homelands in spite of their service to the

1 Roy and Elizabeth Peratrovich to Ernest Gruening, December 30, 1941, Peratrovich Papers, Alaska State Library, ms129, Folder 1. The discrimination that Alaska Natives faced in public accommodations, housing, and employment mirrored that endured by African Americans in the contiguous states. See Nancy MacLean, Freedom Is Not Enough: The Opening of the American Workplace, (Cambridge, 2008); Robert Samuel Smith, Race, Labor, and Civil Rights: Griggs Versus Duke Power and the Struggle for Equal Employment Opportunity, (Baton Rouge, 2008); Zaragosa Vargas, Labor Rights are Civil Rights: Mexican American workers in Twentieth-Century America (Princeton, 2005); Emilio Zamora, Claiming Rights and Righting Wrongs in Texas: Mexican Workers and Job Politics during World War II, (College Station, 2009). For a comprehensive legal history of Civil Rights from Plessy to Brown, see Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, (Oxford, 2004). On decentering Brown see Risa Goluboff, The Lost Promise of Civil Rights (Cambridge: 2007). Tomiko Brown-Nagin decenters the Supreme Court and the NAACP and considers the movement from the bottom up in Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement, (Oxford: 2012). For the Cold War context and Civil Rights, see Thomas Borstelmann, The Cold War and the Color Line: American Race Relations in the Global Arena (Cambridge, 2001); Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton, 2011); Penny M. Von Eschen, Race Against Empire: Black Americans and Anticolonialism, 1937-1957 (Ithaca, 1997). 244

United States. On the home front, all Alaska Natives routinely encountered signs advertising “We Do Not Cater to the Indian or Filipino Trade,” and “Meals at All

Hours—White Help Only” hung in public establishments throughout Juneau and other

Alaska cities.2

Simultaneously with the internment of Pribilof Island Aleut and the Congressional debates over immigration law, national space, and citizenship in U.S. territories, Tlingit,

Haida, and Tsimshian in southeast Alaska were waging a battle against Jim Crow discrimination that deepened the ongoing contestations over the relationship of Alaska

Natives to the federal government. In this struggle, territorial and federal officials explicitly drew on their longstanding confusion over the legal status of Alaska Natives and the distinct history of U.S. citizenship in the territory to deny Alaska Native nations recognition of their sovereignty and land ownership. As discussed in previous chapters,

Southeast Alaska Natives had fought for and won a path to citizenship in 1915, and all

Alaska Natives were subsequently included in the federal Indian Citizenship Act of 1924.

In spite of this, they continued to suffer from persistent Jim Crow segregation. Thus, race discrimination had long been the target of Native leaders, and in the 1940s they mobilized a territorial-wide movement for civil rights. As a result of their efforts, the

Alaska territorial legislature passed the Alaska Anti-Discrimination Act in February

1945. Alaska Natives celebrated the end of legalized segregation in their homelands, and territorial officials heralded the Act as a triumph of American democratic ideals and a testament that the United States practiced what it preached.

2 Terrence M. Cole, “Jim Crow in Alaska: The Passage of the Alaska Equal Rights Act of 1945,” The Western Historical Quarterly, 23 (no. 4, Nov. 1992); Claus M. Naske, Ernest Gruening: Alaska’s Greatest Governor (Fairbanks, 2004), xx; Clause M. Naske, “Ernest Gruening and Alaska Native Land Claims,” The Pacific Northwest Quarterly, 82 (no. 4, Oct. 1991), 140-48; Gruening, Many Battles: The Autobiography of Ernest Gruening (New York, 1973), 318-22. 245

The Alaska Native civil rights movement had high stakes in terms of indigenous land rights that remained unrecognized by the federal government as a result of the settler imperial tensions that characterized the legal landscape of territorial Alaska. The Anti-

Discrimination Act came before the territorial legislature at a time when many Alaska

Native leaders and territorial and federal officials were embroiled in an escalating conflict regarding the creation of Indian reservations and Native land rights in Alaska. Alaska

Natives like the Peratroviches simultaneously sought recognition of their rights to equal citizenship and their land and sovereignty rights as indigenous people. However, as territorial and federal officials sought to limit Native land and sovereignty rights, the rhetoric of equal citizenship deployed by Alaska Natives in their struggle for civil rights legislation became the basis by which these officials opposed their claims to political and economic sovereignty grounded in Native ownership of the land. These officials understood Native sovereignty through their legal constructions of “ward” and “domestic dependent” status, and as Alaska Natives asserted their sovereignty and their rights to equal U.S. citizenship, these officials argued that as citizens, Alaska Natives had never been recognized as wards, which to them was because “the Indians of Alaska were not dealt with as tribes…they became and are full American citizens.”3

Territorial and federal officials, lawmakers, and non-Native Alaskans relied on these settler imperial tensions in order to confine Alaska Native citizenship so narrowly as to preclude collective land and sovereignty rights. During these crucial contests over

Native civil rights and IRA reservations, non-Natives sought to construct and maintain equal citizenship along axes of race and indigeneity in that racial inclusion was

3 Law offices of Allen, Hilen, Froude and De Garmo to the law offices of Pillsbury, Madison, and Sutro, June 13 1942, Washington State Archives, Center for Pacific Northwest Studies, Records of the Alaska Packers Association, Box 14, File 12. 246

contingent on the exclusion of that which affirmed indigenous rights. Alaska Natives, for the most part, continuously demonstrated that expressions of indigeneity such as land ownership and the exercise of their inherent sovereignty, which predates that of the

United States, was not incompatible with U.S. citizenship. In this way, their struggles for citizenship and sovereignty challenged and redefined the parameters of citizenship as it had been legally constructed in the 20th century with regard to indigenous individuals and nations. Rather than acquiesce to the notion that national citizenship required the abandonment of tribal nationhood and collective land ownership and sovereignty, Alaska

Natives contended that land and sovereignty rights were the foundation of their citizenship and the means by which they exercised their rights to equal access and participation in the social, political, and economic life of the nation and the territory of

Alaska.

In this chapter I argue that in their struggle to pass the Anti-Discrimination Act,

Alaska Natives skillfully deployed the civil rights rhetoric of racial equality. However, during the debate over the Act itself and the years following its passage, territorial and federal officials wielded this very rhetoric of racial equality against Alaska Native claims to sovereignty and land. As Alaska Natives struggled for their civil rights and their rights as indigenous peoples, these officials began to argue that reservations for Native people segregated Alaska Natives and in doing so constituted a form of government-sanctioned

Jim Crow. When Alaska Natives protested the appropriation of their land by white settlers, these officials responded with the claim that reservations, or any recognition of

Native land ownership, unfairly excluded whites from land and resources on account of their race.

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These claims, in turn relied on the settler imperial ambiguities surrounding the legal status of Alaska Natives. Territorial and federal officials argued that because Alaska

Natives had never been dealt with as tribes, they had never been forced on to reservations, and therefore had continued hunting and fishing where they pleased.

Because of these distinctions between the Alaska situation and the history of indigenous-

U.S. relations in the contiguous states, they argued that Alaska Natives had never been dispossessed in a manner similar to American Indians. By maintaining these distinctions, and therefore denying Alaska Native nationhood and collective land ownership and sovereignty, these officials, white settlers, and corporate interests could continue the exploitation of Alaska’s natural resources. As we have seen in previous chapters, territorial and federal officials had long schemed over the potential of Alaska’s timber and salmon resources and access to them hinged on their ability to maintain the status of

Alaska Natives and their land ownership as uncertain or outright illegitimate within the existing legal frameworks of federal Indian law. In this context, non-natives interpreted

Alaska Native civil rights activism as bolstering their claims that Alaska Natives had always been treated as individual citizens rather than sovereign nations, and therefore any recognition of sovereignty and land—such as Indian reservations—that was grounded in indigeneity constituted federally sanctioned discrimination of which whites were the victims.

These discourses of what would come to be termed “reverse discrimination” became embedded in debates among federal lawmakers over Native land and citizenship in Alaska, and in turn came to ominously foreshadow midcentury shifts in federal Indian

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policy.4 As territorial and federal officials debated the creation of reservations in Alaska, they came to question the effectiveness of the Indian Reorganization Act in the contiguous states. The IRA, which encouraged tribes to use reservations as homelands where they could engage in collective economic self-determination, came under fire from political representatives and federal officials as a failure in terms of elevating the economic conditions of American Indians on reservations. Additionally, many tribes likewise criticized the legislation as an unwarranted increase in BIA oversight. In opposition to IRA policy, federal officials argued that tribes who demonstrated satisfactory economic independence should therefore be released from wardship status.

This was achieved through the termination of the federal recognition of tribal nationhood, sovereignty, and tribal landholding for tribes that Congress deemed highly assimilated and capable of independence. By 1952, BIA officials had drafted Termination bills for tribes in sixteen states, and in 1953 House Resolution 108 declared Termination as official policy.5

The Alaska civil rights movement and the contests over the implementation of the

IRA in Alaska occurred at a pivotal moment. The rhetoric of freedom and equal citizenship that crystallized in these debates buttressed the logic for terminating tribes in the lower forty-eight as lawmakers associated reservations with unequal citizenship and termination with emancipation. As Alaska Natives pursued civil rights and land claims, territorial and federal officials responded by arguing that Indian reservations, or any

4 Affirmative action and reverse racism discourses of the post civil rights era are examined in Dennis Deslippe, Protesting Affirmative Action: The Struggle Over Equality After the Civil Rights Revolution, (Baltimore, 2012). 5 For more on Termination Policy, see Kenneth R. Philp, Termination Revisited: American Indians on the Trail to Self-Determination, 1933-1953, (Lincoln, 1999); Daniel M. Cobb, Native Activism in Cold War America: The Struggle For Sovereignty, (Lawrence, 2008); Donald Fixico, Termination and Relocation: Federal Indian Policy, 1945-1960, (Albuquerque, 1990). 249

affirmation of land claims, would make wards out of what were otherwise “free Indians.”

This rhetoric of wardship stems from the opinion of Chief Justice John Marshall in

Cherokee Nation v. Georgia in which he characterized Native Nations as “domestic dependent nations” and that they occupied a status similar to that of “a ward to a guardian.” Territorial and federal officials argued that Alaska Natives had not been confined to reservations and that as a result, they been able to engage as individual citizens in the economic, social, and political institutions of settler society. These officials contended that the continued achievement of increased economic independence on behalf of Alaska Natives was by virtue of the fact that they were not “reservation Indians” and therefore had never occupied the status of government wards. The establishment of reservations, then, would be a step “backward” in the efforts of assimilating Native people to full, effective citizenship and would instead increase dependence on the federal government. By this logic, territorial and federal officials disavowed Alaska Native collective political sovereignty through conceptualizations of Native nationhood as legible only through dependence and wardship status—a status from which other tribes ought to likewise be “emancipated.”

The relationship of citizenship and labor was central to these conflicts over land, resources, and sovereignty in Alaska. This centrality of indigenous labor in Alaska stems from the “use and occupation” clause in the 1884 Organic Act, which established a civil government for the territory of Alaska. With regard to indigenous land holdings, it stated that “Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation.”6 Thus, the existence of aboriginal title and the validity of Native land claims came to hinge on how “use and occupation” would

6 1884 Organic Act 250

come to be defined. In the contests over land and resources examined below, territorial and federal officials argued that Native “use and occupation” constituted only those activities that these officials understood as “traditional.” They insisted that any Alaska

Native engagement with behaviors or institutions perceived as “modern” or “non- traditional,” such as commercial fishing or timber harvesting, invalidated the “use and occupation clause” protection of Native possessory rights.7

Alaska Natives continuously refused these designations and their implications for

Native sovereignty and land. Instead they asserted their economic and political sovereignty as a fundamental part of their U.S. citizenship. They contended that as citizens of the U.S. they were entitled to constitutional protections of their property, and that their ownership of land in Alaska by indigenous ancestral rights was not a “special privilege,” but was rather an economic right of indigenous citizenship that provided the foundation for social equality through the expression of political sovereignty.

Furthermore, they vehemently denied that the absence of reservations or federal recognition of aboriginal title in Alaska meant that they had never been dispossessed or deprived of their indigenous rights. In fact, they argued that the very inability or unwillingness of federal and territorial officials to define their legal status had resulted in the depletion of life-sustaining resources, which constituted very real and tangible dispossession. They contended that this process along with decades of rampant racial exclusion and discrimination had undermined their ability to sustain economic, political, and social equality. In drawing attention to their compromised economies and political equality, Alaska Natives sought to invoke an obligation on behalf of the federal government to resolve the legal ambiguities that they contended had undermined their

7 O’Brien, Firsting and Lasting, xxii. 251

indigenous sovereignty rights and rights as U.S. citizens. In the 1940s they pursued a number of solutions including the establishment of IRA reservations in Alaska. However, while drawing similarities between their relationship with the federal government and that of American Indians in the lower forty-eight, they also emphasized important distinctions in that relationship. Rather than accept a unilateral application of federal

Indian law to Alaska, they sought modifications to these policies and rejected an outright trust relationship as a usurpation of their sovereignty. In doing so, they leveraged the settler imperial tensions inherent in their relationship with the federal government and made important claims to indigenous sovereignty, economic self-determination, and citizenship.

“Never desired to be treated as wards”: Jim Crow, Civil Rights, and Indian Reservations in Territorial Alaska

These issues of citizenship, equality, and indigenous land and economic rights collided in 1943 when the Alaska Native Brotherhood brought anti-discrimination legislation to the territorial legislature for the first time and Interior Secretary Harold

Ickes began implementation of the Indian Reorganization Act (IRA) in Alaska. In 1934

Congress passed the IRA as part of the flurry of New Deal legislation aimed at alleviating the devastating affects of the Great Depression. Largely the product of the Commissioner of Indian Affairs John Collier, the IRA was a reversal of allotment policy of 1887 which granted the President of the United States the authority to divide tribal lands and distribute plots to individual tribal members with the remaining lands open for sale to non-Natives.8 In contrast, the IRA “encouraged the use of reservations as homelands

8David A. Chang, “Enclosures of Land and Sovereignty,” Radical History Review, 2011 (no.9, 2011), 108- 19. 252

where tribes could engage in self-government and cooperative economic activity.”9 As we have seen in chapter three, Tlingit attorney, civil rights activist, and former territorial legislator William Paul Sr. had urged Congress to amend the IRA in 1936. He had long perceived the legal flexibility of the federal government’s refusal to determine it’s relationship with Alaska Natives as a means to ensure that federal policy applied to

Alaska reflected Alaska Native political and social organization and objectives more closely. Soon after the IRA became applicable to Alaska Natives, many communities began pursuing recognition of their land ownership through the establishment of Indian reservations.

On May 20th, 1943, Ickes created the first of these large IRA reservations at

Venetie, which encompassed 1.4 million acres of land for twenty-five Athabascan families on the Yukon River in the Alaskan interior. Two days later, he created another

35,000 acre fishing reserve at Karluk on Kodiak Island.10 The Karluk reservation included a ban on any non-Native fishing activities within 3,000 feet of shore of the reservation lands. Non-Native Alaskans, territorial officials, and agents of the fishery and timber industries responded with alarm upon learning that over a dozen applications for similar reservations had been filed by Alaska native village leaders who sought recognition of their communities’ land rights.11 They balked at the prospect that millions of resource rich acres could be restricted for Native use only, and representatives for both the fishery and timber industries immediately set about finding a way to render Native land claims illegitimate. They did this by exploiting the distinctions between Alaska

9 Kenneth R. Philp, “The New Deal and Alaska Natives, 1936-1945,” in Steven W. Haycox and Mary Childers Mangusso, An Alaska Anthology: Interpreting the Past (Seattle, 1996), 267-86. 10 Case and Voluck, Alaska Natives and American Laws, 100. 11 Ernest Gruening, The State of Alaska, (New York, 1968), 367. Additionally, a document from William Brophy to Julius Krug, June 20, 1946, lists dozens of reservation proposals awaiting approval, General File 9-1-52 Part 3, Box 332 Records of the Office of Territories, RG 126 (National Archives, College Park). 253

Natives and American Indians generated by the long history of settler imperial legal tensions. At the core of these contests over indigenous land ownership were legal constructions of indigenous citizenship couched in ideas about labor and dispossession.

Even prior to establishment of reservations, legal council for the Alaska Packers

Association, one of the longest running fishery operations in the territory, worried about

Interior Department’s ability to “establish any reservation it might see fit” and that the government would not be obliged to compensate cannery owners for the loss of profits.12

The threat of losing access to hundreds of thousands of acres of fishing waters gave rise to efforts to determine the extent to which, in the minds of corporate agents, Alaska

Natives had legitimate claims to their homelands. In a 1939 letter from the Seattle law offices of Allen, Hilen, Froude and De Garmo to the law offices of Pillsbury, Madison, and Sutro in San Francisco concerning pending lawsuits brought by Alaska Natives in pursuit of their fishing rights, Edward Allen distinguished between the political organization of Alaska Natives as opposed to that of American Indians in an effort to dispel concerns that these claims were valid. He wrote “there was not in Alaska the same tribal relationship which existed among the Indians with which we are more familiar in the United States proper. The Indians of Alaska were not dealt with as tribes.” Then, interestingly, he stated that instead “they became and are full American citizens.”13

Allen’s statements here reveal two important things: first, is the understanding, shared by many territorial officials, of the distinct historical trajectory of U.S. and Alaska

Native relations in which Alaska Natives were not recognized as sovereign tribal nations.

12 Pillsbury, Madison, and Sutro to Tichnor APA Nov 25, 1939 13 Law offices of Allen, Hilen, Froude and De Garmo to the law offices of Pillsbury, Madison, and Sutro, June 13 1942, Washington State Archives, Center for Pacific Northwest Studies, Records of the Alaska Packers Association, Box 14, File 12. 254

Second is that in lieu of political sovereignty, the federal government designated Alaska

Natives as U.S. citizens as opposed to government wards. These distinctions in the legal discourse surrounding the nature of Alaska Native indigeneity and the history of U.S. relations in Alaska became fundamental in the ways that these lawyers and officials attempted to deny Alaska Native land claims. They used these distinctions to claim that

Alaska Natives, because they had never been treated as tribes through treaties of formal land cessions and recognition, that they had never been dispossessed or denied their rights to the land.

Alaska Natives disagreed, however, and when they asserted the legitimacy of exclusive Native fishing rights to their lands and waters they made certain to articulate a clear history of dispossession, the responsibility for which they laid at the federal government’s doorstep. In April of 1944, William Paul Sr. submitted four petitions to the

Secretary of the Interior on behalf of the Tee-Hit-Ton tribe of Wrangell, Juneau Indians,

Douglass Indians, and Sitka Indians in which they claimed ownership of their land in addition to “the fish that swim along the shores of said area within 3,000 feet therefrom.”14 The petition argued for the necessity and validity of exclusive fishing rights by contending that the behavior of the federal government with regard to the non- recognition of Alaska Native indigenous land rights had constituted a de facto dispossession. They wrote,

In 1924, the federal government, under a theory of federal proprietary ownership of said area opened said point to the public for establishment of a fish trap and thus forced said members to obtain a livelihood elsewhere; and a member of the public entered said area at said point and established a fish trap thereat, in complete derogation of the property rights of petitioner and its members; and said trap intercepted fish travelling to the

14 Petition of William Paul on behalf of himself and the Tee-Hit-Ton Tribe, April 3, 1944, Washington State Archives, Center for Pacific Northwest Studies, Records of the Alaska Packers Association, Box 14, File 12. 255

seining grounds of petitioners’ members in such large numbers that said seining grounds were rendered valueless.15

By laying out a clear accusation of dispossession by the federal government’s opening up of waters to the public in which all citizens, Native or not, would have access to the resources therein, Alaska Natives asserted the validity of their claims and aligned the damages and losses they suffered with that of Indians in the lower forty-eight by designating the federal government as the responsible party. In doing so, Alaska Natives forged coherence between settler imperial tensions by asserting an obligation on behalf of the government to protect their land and livelihood. I propose that this charge that the federal government was responsible for the depressed economic state of Alaska Natives in these areas and the insistence that the government was obliged to compensate them was an effort by William Paul and his clients to render Native economic sovereignty legible to these officials through the language of dispossession and dependence.

It is equally important to note that in these petitions Alaska Natives did not ask specifically for an Indian reservation even though the provisions of the Alaska

Amendments to the IRA would have allowed for this option of land and sovereignty recognition. Instead, they asserted exclusive rights of private property ownership guaranteed them through collective ancestral use and occupation rights. In this context, their claim of ownership of all the fish that come within 3,000 feet of shore was a targeted challenge to corporate interests who, in response to these petitions and similar claims, came to insist that Alaska Natives were only entitled to an amount of fish necessary for subsistence. By construing Native rights in this way, these commercial interests also implied–and later came to insist—that any attempt at commercial enterprise

15 Ibid. 256

on behalf of Alaska Natives abrogated Native use rights. In this sense, the petitioners’ assertions of their rights to “obtain a livelihood” must be understood as a deliberate claim to economic sovereignty in that the use they made of their fish was entirely at their discretion. Their rights as citizens and their land rights as indigenous people included the right to both personal use and to compete commercially in the fishery industry through the assertion of exclusive rights to fish in a specific area.

In response to these claims to exclusive rights, the economic sovereignty that they implied, and the building momentum in Alaska Native communities regarding their land rights and the establishment of reservations, Ernest Gruening addressed the 1944 annual convention of the Alaska Native Brotherhood. After devoting some time to matters of political representation and the need to end race discrimination in Alaska he lectured the convention concerning the “recent hearings and resulting discussions regarding

‘aboriginal rights.’” He argued that reservations or any other similar policy that excluded whites from certain lands and restricted Alaska Natives to reserved lands was both undemocratic and discriminatory to both parties. He then invoked the distinctions between Alaska Natives and American Indians. He stated that “in southeastern Alaska the

Native peoples have never desired to be treated as wards in the same sense that Indians have been in other parts of the United States” and that “certain restrictive legislation which applies to Indians in the United States does not apply to them here.”16 Implicit in this statement is that because the federal government never recognized Alaska Natives as tribal nations similar to those in the lower forty-eight, that Alaska Natives had not, in fact, ever been wards of the government. This wardship status is what, in the minds of

16 Gruening to Alaska Native Brotherhood Convention, November 4-8 1944, Washington State Archives, Center for Pacific Northwest Studies, Records of the Alaska Packers Association, Box 14, File 12. 257

Gruening and others, validated claims on the government by Native people. Since these territorial officials argued that Alaska Natives had never been wards, but had rather been

American citizens, they concluded that any collective land claims grounded in Alaska

Native assertions of political sovereignty were all but null and void. This argument regarding wardship vs. citizenship status was couched in notions of indigenous dispossession in the United States. Gruening and others contended that Alaska Natives had never occupied a wardship status simply because, in their minds, Alaska Natives had never been dealt with as tribes with which the federal government was compelled to sign treaties for land. By this logic, he claimed Alaska Natives had never been dispossessed. in his 1943 address to the ANB, Gruening was sure to point out that Alaska Natives “live pretty generally in the villages where they have always lived. They can be counted upon to continue to live there.”17

Gruening’s statements represent his deliberate attempt to disavow Alaska Native dispossession and the logic by which he does so is inherently tied to interpretations of the

“use and occupation” clause of the 1884 Organic Act as it relates to conceptualizations of

“legitimate” Native labor. The fisheries in Alaska had long employed Native labor in their operations, and the non-recognition of indigenous land rights guaranteed the fisheries this supply of racialized, “landless” laborers. The confirmation of Alaska Native use and occupancy rights threatened to upend long-standing labor relations in the fisheries industry, and corporate lawyers sought a means to relegate attempts by Alaska

Natives to assume control over natural resources as outside the protections in the Organic

Act. In 1943, the President and General Manager of the Alaska Packers Association, A.K.

17 Gruening to Alaska Native Brotherhood Convention, 1943, Washington State Archives, Center for Pacific Northwest Studies, Records of the Alaska Packers Association, Box 14, File 12. 258

Tichnor wrote to California Congressman Richard Welch regarding the implications of the Karluk reservation. In this letter, Tichnor laments that “if the Indian reservation is created, it will put our company entirely out of business and we will have to depend upon the favor and generosity of the natives in obtaining fish. It would compel us to make some arrangements with the natives to purchase their fish.”18 To Tichnor and others, the notion that corporate fisheries that had been operating in Alaskan waters without any restriction regarding indigenous rights would need to “deal with the natives who will control the source of supply of the raw product” was preposterous. In defense of their opposition to these shifting relationships between labor and resources, these officials sought a way to limit indigenous land claims. They did this by attempting to limit the parameters of indigenous labor and citizenship.

In July of 1944, H.L. Faulkner, a Juneau based attorney for fishery interests scoffed at the attempt by Alaska Natives to assert exclusive fishing rights as part of their ancestral “use and occupation” land rights. His objection hinged on the imagined lack of a history of dispossession that he, and many others, contended set Alaska Natives apart in terms of their possessory rights and their legal relationship with the United States. In a letter to the Alaska Packers Association he argued that legitimate use and occupation for

Native fishing rights included only those activities that their ancestors had enjoyed— namely the taking of fish only for subsistence use. He contended that “so far as fishing for their own use is concerned, they have never been deprived of that right and they can still hunt and fish where they please.” He continued, “They still have that, so we must conclude what they want today is something in excess of that and the right to absolute

18 A.K. Tichnor to Richard Welch, Washington State Archives, Center for Pacific Northwest Studies, Records of the Alaska Packers Association, Box 14, File 12. 259

dominion over the fisheries in certain areas so that they may use them for commercial purposes.”19 He concluded by asserting that the rights to commercial purposes are something that Alaska Natives had never had, thus they were not entitled to it on account of their ancestral indigenous rights.

These notions of indigenous economic rights became embedded in the fight for racial equality in Alaska and shifted national discourses of race and conceptualizations of citizenship for Native people. Shortly before his 1944 address to the ANB, Gruening penned a lengthy memorandum to Interior Secretary Harold Ickes expressing his displeasure at the developing reservation policy in which he attacked indigenous land rights. He wrote:

We are trying to eliminate discrimination and prejudice against the ‘native’ in Alaska…The establishment of reservations in a territory where (…) there have been none, will among other numerous consequences set us far back in the matter of discrimination. If large areas (…) are suddenly made the exclusive perquisite of one race, retaliation in some form or other (…) which will accentuate race prejudice and cleavage are, in my view, certain to follow. It will be difficult to maintain that if white fishermen are excluded from certain areas where they have fished all their lives, they will not demand a similar exclusion of ‘natives’ from all remaining areas. 20

Then, in a memorandum from December of that same year, Gruening charged that reservations for hunting, fishing, and subsistence activities of Alaska Natives constituted

“a form of inverted Jim Crowism” and he threatened that the recognition of such

“exclusive rights” would incite “racial animosity by (…) setting aside widespread areas as no trespassing-by-whites.” The consequences, he cautioned, would prevent Alaska

Natives from becoming “equal citizens of the Territory—politically, economically,

19 Faulkner to Washington State Archives, Center for Pacific Northwest Studies, Records of the Alaska Packers Association, Box 14, File 12. 20 Ernest Gruening to Harold Ickes, August 12, 1944, General File, 9-1-52, Part 3, Box 332 Records of the Office of Territories, RG 126 (National Archives, College Park). 260

socially,” as segregated Alaska Natives would lose economic and political opportunities while “segregated” whites would surely respond by reinforcing the barriers of Jim

Crow.21

In these letters, Gruening invoked the ambiguous relationship of Alaska Natives to federal Indian law in crafting his claims regarding indigenous land ownership and reverse discrimination. First, while informing Ickes of the struggle to end discrimination, he insists that the current IRA policies would “create Indian reservations in a territory where (…) there have been none” and that such policies would, while inciting racial tensions, stymie Alaska Native economic and political “progress.”22 It is important to note that his statement regarding the history of reservations in Alaska is wrong—and deliberately so. In the early twentieth century, a number of reservations dotted the

Alaskan landscaped. Typically created through presidential executive order, these reservations were “public purpose reserves,” a designation that included Native use and occupation.23 However, by claiming that there had never been reservations in Alaska,

Gruening could assert that Alaska Natives had never been considered wards of the state nor had they been dispossessed. These two distinctions underpinned his understanding of full citizenship and equality, which also allowed him to designate Native collective landownership of Alaska as a “special privilege”—“inverted Jim-Crowism.”

Gruening’s invocation of reverse Jim Crow was contingent on rhetoric linking together citizenship with labor and came amidst an ongoing “Alaska for Alaskans” campaign in which non-Native Alaskans sought to wrench control of the territories

21 Ernest Gruening to Harold Ickes, December 11, 1944, Alaska Indian Reservations File, Box 331, Records of the Office of Territories, RG 126 (National Archives, College Park). 22 Ibid. 23 Case and Voluck, Alaska Natives and American Laws, 96-98. 261

natural resources away from outside corporate interests. Gruening imagined that as individual citizens with an equal stake in the development of the territory, Alaska Natives would benefit proportionately as more wage labor jobs came to the Alaska once the fishing and timber industries came under control of local Alaskan business leaders. In his

August letter he insisted that

the ‘native’ is in a very real and practical sense the true Alaskan, not merely because he has been here from time immemorial (which is more important sentimentally than practically) but, far more significantly, because he always will be here, representing, generically, not only the one great group of certainly permanent Alaskans, but the one group of twelve-months-out-of-the-year residents.24

He continued that it was of utmost importance to “build up the ‘natives’ economy,” and that should Alaska industries, “now largely vested in absentee canning concerns” be transferred to “the ownership of Alaskan communities, Alaskan groups, Alaskan cooperatives, and Alaskan individuals” then Alaska Natives would certainly benefit accordingly.25 Gruening imagined Native political, economic, and social citizenship was contingent on the benefits of wage labor that these industries would bring to Native communities. This logic implied that the true significance of Alaska Natives as the “one group of twelve-months-out-of-the-year-residents” was their capacity to become twelve- months-out-of-the-year-laborers. To Gruening, the transformative affects of wage labor were the means by which Native people could achieve full “modern” citizenship, and these wage labor opportunities could only come about through large scale industrialization of the extraction of timber and fish resources—a process that Gruening likewise imagined would provide jobs for all Alaskans—native and non—and encourage further migration to the territory from the states, leading to an increase in the non-Native

24 Ernest Gruening to Harold Ickes, August 12, 1944, General File, 9-1-52, Part 3, Box 332, Records of the Office of Territories, RG 126 (National Archives, College Park). 25 Ibid. 262

population. Importantly, these restrictive understandings of indigenous labor aligned with the interests of the fishery industry in that Gruening’s statements imply that wage labor, not commercial enterprise, was the only acceptable expression of indigenous economic citizenship for Alaska Natives. To him, Native control and ownership of Alaska and its natural resources was out of sync with his understandings of the linear progression to citizenship.

Alaska Natives rejected these limitations to their right to economic self- determination, the land they owned as indigenous Alaskans, and their rights as U.S. citizens, and they skillfully used the rhetoric of rights and equality employed by territorial and federal officials to their advantage. Native leadership in the Alaska Native

Brotherhood had worked closely with Gruening and others for years regarding civil rights legislation for Alaska Natives. They fully understood the logic by which non-Natives understood citizenship, inclusion in the nation-state, and indigenous sovereignty and they were able to leverage these ideas in their pursuit of their vision of how these institutions worked together.26 Not long after Gruening’s December memorandum to Ickes, the anti- discrimination legislation the ANB had been fighting for was put to a vote in the Alaska

Territorial Legislature. In fact, when the legislature convened to debate the Alaska Anti-

Discrimination Act in January the following year, none other than Roy Peratrovitch ominously testified that failure to pass the bill would jeopardize Native opposition to the

Ickes reservations. He insisted that Alaska Natives “were opposed to any form of special privilege” and that, without equal protection under the law, they could “not stand beside you and aid you in your fight against Ickes.”27

26 Metcalfe, A Dangerous Idea, 48. 27 Daily Alaska Empire, January 31, 1945; Cole, “Jim Crow in Alaska.” 263

To non-Natives, these statements may have appeared as acquiescence to the idea that Native land rights constituted a “special privilege” and that Native people favored the abandonment of aboriginal land claims in favor of equal citizenship. Rather,

Peratrovich along with a number of Native communities were merely rejecting the terms of the IRA reservations in which the land would be held in trust by the federal government. In doing so, they were leveraging the long-standing ambiguity of their legal status to leave room for alternative solutions to the recognition of Native land and sovereignty rights that reservations could possibly curtail. Any land claims would have to adhere to Alaska Native visions of indigenous social, political, and economic structures, and while using IRA reservations as a model, they sought to modify the parameters of this legislation and mold it to their understandings of land and the relationships and livelihood that it sustained.

For example, in a 1946 memorandum, Irwin Silverman, the Solicitor for the

Department of the Interior recounted to Interior Secretary Julius Krug the reactions of

Alaska Natives to the reservation proposals. He indicated that at Klukwan, many Native residents “became less inclined to be cooperative when it was made plain to them that I was not authorized to make findings to their [possessory] rights.”28 Likewise, Silverman indicated that Alaska Natives at Barrow scoffed at the proposed size of their IRA reservation and that “no local sentiment favors the setting aside of any area smaller than

[…] 30,000 square miles.”29 Alaska Natives perceived the Department’s refusal to recognize possessory rights and the small size of the proposed reservations as an unacceptable usurpation of Native sovereignty. By invoking emerging notions of special

28 Memorandum, Irwin Silverman to Julius Krug, November 8, 1946, General File, Box 332, Records of the Office of Territories, RG 126 (National Archives, College Park). 29 Ibid. 264

privilege and the Ickes reservations together in the halls of the territorial legislature,

Peratrovich was not opposing Native land rights; he was rather laying the foundation for an alternative vision of indigenous citizenship that included both racial equality and

Native driven terms of land rights and economic sovereignty.

Furthermore, while establishing opposition to the Ickes reservations, Peratrovich sought clarification on the possibility of land claims from George Folta, Secretary of the

Interior attorney at large. Just months before his testimony before the territorial legislature, Peratrovich explicitly inquired as to whether and by what means Alaska

Natives could be compensated for land loss based on the existence of aboriginal title.

Folta had advised that a settlement that included a combination of monetary compensation and land may be possible in Alaska and that the best way to pursue such an outcome was in the U.S. Court of Claims where southeast Alaska Natives could bring suit under provisions of the Tlingit and Haida Jurisdictional Act of 1935—yet another pieces of legislation that Alaska Natives pursued by negotiating these ambiguous legal spaces.30

Thus, the rejection of reservations must not be interpreted as a rejection of Native land and sovereignty rights in lieu of equal citizenship as Gruening and others insisted. Rather, this must be understood as Native manipulation of the fluid legal landscape in territorial

Alaska in which settler imperial tensions provided a platform from which to articulate and refine their visions of indigenous belonging.

The territorial legislature passed the Alaska Anti-Discrimination Act shortly after

Peratrovich’s testimony, however the association of reservations with Jim Crow became increasingly embedded in the landscape of territorial Alaska as federal and territorial

30 George Folta to Roy Peratrovich, November 8, 1944, Peratrovich Papers, Alaska State Library, ms129, Folder 2. 265

officials, and corporate interests pursued access to land and water resources. In response,

Alaska Native communities in southeast Alaska further asserted their rights to subsistence, commercial enterprise, and wage labor as the indigenous owners of Alaska and U.S. citizens. Just months following the passage of the Alaska Anti-Discrimination

Act, the House Committee on Territories convened in August of 1945 to hold hearings to address the problems associated with economic development in Alaska. Once again, the likening of Native land claims to reverse discrimination became the foil for the objectives of territorial and federal officials who sought access to Alaska’s natural resources, and they were emboldened by the recent codification in law of racial equality in the territory.

The legislation, they felt, underscored their arguments regarding citizenship as embodied in the independent wage laborer and they contended that the elimination of Jim Crow allowed Native people to fully realize their citizenship as participants in a capitalist economy. As we have seen above, this vision was contingent on limitations to the ways in which Alaska Natives could “participate” in commercial economic activity, and they contended that in order for all citizens to benefit equally, Native claims to land and exclusive fishing rights for commercial purposes would have to be extinguished. These officials threatened that failure to do so was the primary reason for Alaska’s crippled economy. In a statement presented at the hearings, the Juneau Chamber of Commerce lamented that “while the controversy remains open to dispute, no one can predict whether

(…) he may not find himself subjected to the superior easement of aborigine right. It affects not only the individual homesteader (…) but every industry small or large.” 31 As

31 U.S. Congress, House Committee on the Territories, To Conduct a Study and Investigation of the Various Questions and Problems Relating to the Territory of Alaska: Hearings before the Committee on the Territories, House of Representatives, Seventy-Ninth Congress, First Session, pursuant to H. Res. 236, a 266

we have seen, commercial industrial interests were not just fearful that they might be prohibited from accessing natural resources on Native land, but also that they would be beholden to and competing with Alaska Native commercial enterprises. In their efforts to prevent such an economic arrangement, these officials sought to limit the parameters of indigenous economic participation in the industrial capitalist economy to that of a wage laborer, and they insisted that such an arrangement was the only one guaranteed through the combined legal structures of “use and occupation” and equal citizenship.

Testifying in relation to indigenous land rights and economic development was

Frank Peratrovich, Roy Peratrovich’s brother, ANB member, and representative in the territorial legislature. Like his brother, Frank’s testimony reveals a vision of citizenship and belonging that the binary of racialized reservations and wage labor based citizenship could not account for. When questioned by Territorial Congressional Delegate E.L.

Bartlett as to whether land set aside for Alaska Natives “would help them in any respect,”

Peratrovich responded by pointing out the diverse ranges of economic experiences and practices in Native communities. He argued that reservations may benefit some more than others, though what was important was the recognition of indigenous economic sovereignty. He stated that he “had contacts in the various reservations throughout the states” and that based on the experiences of those contacts, “I’m against any form of reservation.”32 He continued that Native communities “are interested in developing this territory, and we maintain that the quickest way to solve all these problems is to eliminate fish traps.” He argued that he and other Native leaders had seen the advantages of the

IRA in Alaska, and had worked hard to organize under its provisions, however, the

Resolution Directing the Committee on the Territories to Conduct a Study and Investigation of Various Questions and Problems Relating to the Territories of Alaska and Hawaii, (Washington, 1946). 32 Ibid. 34. 267

shorelines were inundated with fish traps, which devastated efforts at economic sustainability. For Peratrovich then, the guaranteed access to fish and the economic sovereignty to compete commercially was paramount rather than the establishment of a reservation that may not include these rights. This, however, was just the affirmation of

Native ownership of land and resources that the fishery industry feared. Peratrovich also testified that “outside [fishery] interests got in and told some of our big men that it would be a wrong thing for us to own a community cannery.”33

To Peratrovich, then, the problem was larger than one of whether or not Alaska

Natives should have reservations. Rather, he accused fishery interests of intentionally undermining the efforts of Native communities to assert their economic rights as U.S. citizens to pursue the development of their natural resources of the land they owned as indigenous people. While rejecting the restrictions of IRA reservations, Peratrovich insisted that Alaska Natives “have always hunted and fished these areas and for that reason are still entitled to it.”34 Homer Angell, House Representative from Oregon, countered by demanding whether it was not “possible to protect the rights of the aboriginals through permitting them to enjoy all the rights of other citizens and place them on an equal basis with other citizens?” To this, Peratrovich replied, “That’s all right to a certain extent, but you’re still going to have to find a means for them to earn their living…and they can’t compete with the [corporate fish] traps.”35 He stated that prior to corporate fish traps appearing along Tlingit fishing waters, he and his community members used the income from the fish they harvested to send their children to school

33 Ibid. 35. 34 Ibid. 36. 35 Ibid. 36. 268

and to purchase supplies.36 By selling a portion of their fish for cash, Alaska Natives had access to the capitalist economies that Gruening, Bartlett, and others had imagined were only accessible by wage labor alone. The subsistence activities that Alaska Natives had sustained for generations were the very means by which they engaged capitalist markets.

This expansive vision of blended economies and Native controlled resources, which they used in collective entrepreneurial ways, as a proper exercise of citizenship flew in the face of the arguments of territorial and federal officials who insisted that only the extinguishment of those rights would transform Alaska Natives from wards into effective citizens. Importantly, it also carved out an alternative to reservations, revealing the flexibility with which Alaska Natives understood how territorial and federal officials had framed their legal status. In doing so, they pursued elements of federal policy while rejecting others in their efforts make themselves legible to settler legal systems while not forfeiting their own visions for sovereignty, land, and citizenship.

Of Land and Labor: Settler Imperialism and the Tongass Timber Act

In June of 1946, Oscar Chapman, Under Secretary to Julius Krug after the resignation of Harold Ickes, had written to the Solicitor regarding the “active interest of a group which proposes to establish a large pulp and news print mill in southeastern

Alaska.”37 He argued that if this project came to fruition, it would mean the infusion of

$20 million into the territorial economy. However, potential investors were “concerned about the unsettled status of Indian claims in the area” thus Chapman lamented that “it would be most unfortunate if the proposed development, undoubtedly the most significant potential activity on the Alaska horizon, should be blocked by reason of any

36 Ibid. 34. 37 Oscar Chapman to Solicitor, June 14, 1946, File 9-1-52 Part 3, Box 332, Records of the Office of Territories, RG 126 (National Archives, College Park). 269

such uncertainty.”38 The Tongass National Forest encompassed nearly the entirety of the

Tlingit and Haida territory and in 1946 most of their land claims remained unrecognized by the federal government. The prospect of missing an opportunity of such proportions prompted lawmakers and territorial and federal officials to find a quick solution through which they could quiet concerns over Native rights.

Like in the fishery industry, notions of labor, citizenship, and the “use and occupation” clause in the 1884 Organic Act once again framed efforts by territorial and federal officials to disavow Native land and sovereignty in what the federal government had designated the Tongass National Forest. The Tlingit and Haida claimed a total of

3,339,000 acres. However when the appointed hearings officer, Judge Richard Hanna, rendered his decision, he found scant evidence for exclusive Native land holdings.

Secretary Ickes, while overruling Hanna, only recognized only 273,000 acres (roughly

8%) of the claims as valid under the use and occupation clause of the Organic Act.39

Ickes, while arguing that his findings did not preclude “the establishment of Indian reservations” nevertheless adhered to these conceptions of “use and occupancy,” concluding “justice and common sense require a distinction between the claim of exclusive occupancy, which has clearly been extinguished, and the claim of nonexclusive usufructuary right.” Because “aboriginal utilization has dwindled” in areas outside villages, the Native “claim of a right to exclude third parties has” likewise been extinguished.40 Ickes’s decision reflects non-Native understandings of modernity and citizenship in that the degree to which Alaska Natives supplemented customary land use

38 Ibid. 39 On Hanna, see Case and Voluck, Alaska Natives and American Laws, 101. Harold Ickes, “Claims of the Natives of Hydaburg, Klawock, and Kake, Alaska,” printed in U.S. Congress, House of Representatives, Committee on the Territories, To Conduct a Study,, 141-157. 40 Ibid. 153. 270

practices with wage work or other “modern” capitalist undertakings represented to federal officials the degree to which their claims to land had been extinguished.41 Thus, he concluded that Alaska Natives could only gather natural resources in lands where he contended their rights had been extinguished so long as that land remained in the public domain and that all other interested parties had equal access.

Subsequent examination of Native land use, ordered by Ickes and conducted the following year by anthropologist Walter Goldschmidt and BIA Chief Council Theodore

Haas, crystallized this relationship between indigenous land and labor—and took it one step further. They argued in their findings “the Tlingit and Haida Indians have continuously used and occupied the lands and waters of Southeastern Alaska” and that while these Native nations “had a well-defined system of property ownership not unlike our own (…) [they] have made an adjustment to modern conditions.”42 While they advocated for the immediate protection of “lands still used and occupied” by Alaska

Natives in southeast Alaska, they concluded that, due to these adjustments to “modern” conditions (such as supplementing subsistence economies with wage work) most of the land in the Tongass National Forest had fallen outside of their possessory rights. Like

Ickes, they recognized only a fraction (10%) of the 18 million acres claimed by numerous

Native communities in southeast Alaska.43

By rendering Native land ownership as contingent on and limited to those labor and economic practices recognized by non-Natives as “traditional,” these officials reaffirmed settler colonial ideas about labor, modernity, and citizenship. Hanna and

Goldschmidt’s argument that by adjusting to “modern conditions” Alaska Natives had

41 See O’Brien, Firsting and Lasting. 42 Walter Goldschmidt, Haa Aani = Our Land: Tlingit and Haida Land Rights and Use (Seattle, 1998), 4. 43 Ibid. 271

lost the majority of their land reveals the limits of citizenship for Native people. In distinguishing between modern and traditional labor practices in which Native people could only retain land ownership through adherence to a strict and narrow definition of subsistence labor, these officials insisted that Native people could only belong to

“modernity” through the forfeiture of their land and sovereignty and acclimation to capitalist labor.44 Furthermore, the language in the report issued by Goldschmidt and

Haas suggested that for every degree to which Native people adapted to “modern conditions,” a corresponding degree of land passed out of their possession. Given the recent victory of Alaska Natives against Jim Crow in which discrimination in employment had been a central issue, the logic deployed by these officials became profoundly dangerous: in the minds of territorial and federal officials and corporate agents, Alaska Native claims to civil rights as citizens could (and should) cost them their land and sovereignty rights as indigenous people. Importantly, this logic was fundamental to the development of settler imperialism in the territory because of the ways that the articulation of Alaska Native political strategies had in fact been limited to citizenship discourses because of the settler imperial refusal to recognize Alaska Native nationhood and sovereignty in the similar legal terms to Native nations in the contiguous states.

These findings, however, were only a recommendation and the issue of land remained unresolved. In the meantime, Gruening, Bartlett, and representatives from the

Forest Service and the Department of Agriculture advocated for a legislative solution; the result was the Tongass Timber Act. This legislation allowed the Department of

Agriculture to sell timber in the Tongass National Forest while the profits from those

44 See Page Raibmon, Authentic Indians: Episodes of Encounter From the Late Nineteenth Century Northwest Coast (Durham: Duke University Press, 2005); Chantal Norrgard, Seasons of Change; William Bauer, We Were All Like Migrant Workers Here; Daniel Usner, Indian Work. 272

sales were held in escrow.45 If courts established at a later date that Alaska Natives did indeed possess aboriginal title, the profits would be used for a settlement while the only possessory rights to land would be for village sites.46 This bill caused widespread disapproval among Alaska Native communities, but represented what Gruening considered to be an acceptable compromise. While he held fast to the notion that Natives did not have title to the lands in question, he grudgingly acquiesced to the idea that should the courts find that they did, that a monetary settlement would be paid so long as the plans for the mill could move forward.47

The very nature of the bill—to postpone indefinitely any recognition or settlement of Native land rights in Alaska—reveals its settler imperial function. By deliberately holding in suspension any recognition of Alaska Native land and sovereignty over land and timber in the Tongass National forest pending future (and uncertain) court action, the

Tongass Timber Act provided a means for corporate interests and white settlers to continue the appropriation and extraction of these very resources from Alaska Native homelands. In this way, lawmakers along with territorial and federal officials, timber, and fishing corporations exploited the ambiguous legal landscape in the territory and established the legal infrastructure to potentially sustain these uncertainties perpetually.

Under this cloak of settler imperial uncertainty and ambiguity, then, these officials attempted to legislate the natural resources and the indigenous economic sovereignty and equal citizenship that the land supported right out from under Native communities.

45 U.S. Congress, House of Representatives, Hearings Before the Committee on Agriculture 80th Congress, 1st session on House Joint Resolution 205, Joint Resolution to Authorize the Secretary of Agriculture to sell timber within the Tongass National Forest, (Washington, 1947), 1-2. 46 Ibid. 47 Ernest Gruening to Julius Krug, September 16, 1947, Oscar Chapman Papers, Box 20, GRA-HAZ, (Harry S. Truman Library); U.S. Congress, House of Representatives, Hearings Before the Committee on Agriculture, (Washington, 1947), 44, 161. 273

Whereas the reception of IRA reservations in Native communities had been mixed, the notion that the Department of Agriculture could sell timber on land claimed by Alaska Natives without their consent and without any guarantee of future compensation generated immediate opposition. The proposal that many expected lawmakers to introduce would have allowed for the sale of timber, but guaranteed Alaska

Natives 10% of any profits made from such sales. This percentage more than likely reflects the Ickes decision regarding Hydaburg, Kake, and Klawock and the

Goldschmidt-Haas report. However, southeast Alaska Natives were surprised when the final version of the resolution no longer contained the 10% provision. In a letter to James

Curry, an attorney representing a number of Native communities in the territory, his assistant Francis Lopinsky revealed that Gruening, in fact, had dealt “the death blow to the 10% timber bill” because he feared it would confirm indigenous land rights.48

Additionally, the Justice Department had objected to the possibility that a percentage settlement might guarantee Alaska Natives payments indefinitely.49 This modification further reveals the attempt by territorial and federal officials along with corporate agents to maintain the status quo with regard to status of Native land claims. By foreclosing any acknowledgement of Native land ownership of any amount of the contested Tongass

National Forest in the elimination of the 10% clause, those who succeeded in having this provision stricken from the bill ultimately sought to refrain from including legal language that could even imply the possibility Native land ownership. By removing this clause, these officials sought to remove any language that could later be construed to even imply

48 Francis Lopinsky to James Curry, May 13, 1947, Sealaska Heritage Institute, Curry-Weissbrodt Papers, Box 1B, file 17.2 49 Memorandum to Judge Johnson from C. M. Wright, May 9th, 1947, Sealaska Heritage Institute, Curry- Weissbrodt Papers, Box 1B, File 17.2 274

that Alaska Natives owned the land, making future resolutions increasingly difficult, thereby sustaining ambiguity indefinitely.

Lawyers and representatives for southeast Alaska Native communities surveyed the affected villages with news of the final proposal, and encountered strong objections.

Ruth Bronson, Cherokee, and Executive Director of the National Congress of American

Indians (NCAI), travelled to Wrangell and Petersburg, Alaska, and reported that Alaska

Natives urged them to “defeat this last proposal even if it means stopping the sale of their timber all together.”50 While some were willing to accept the 10% compromise, it was clear that Alaska Natives would reject any attempt to usurp their economic sovereignty and they took bold steps in asserting their rights to develop timber resources, commercially as they saw fit, as the indigenous owners of the Tongass. In fact, Alaska

Natives had been working to arrange for the sale of their timber resources directly with logging corporations as an affirmation of their rights to the land as well as their rights as citizens to engage in the economic activities of the territory. Prior to the introduction of the Tongass Timber Act, James Curry, legal council for the NCAI and a number of

Alaska Native villages, reported that “for some weeks now we have been conducting extended negotiations with the pulp and paper industry, mostly through Warner Gardner, regarding proposals to establish an industry in Alaska.”51 He advocated three weeks later in a telegram to Ruth Bronson that “Indians should negotiate directly with pulp and fish interests and bankers as well as through the government. If private interests and Indians

50 Ruth Bronson to James Curry, May 19th, 1947, Sealaska Heritage Institute, Curry-Weissbrodt Papers, Box 1B, File 17.1 51 James Curry to William Paul Jr., April 23, 1947, Sealaska Heritage Institute, Curry-Weissbrodt Papers, Box 1B, File 17.2 275

get together, government will probably have to go along.”52 By employing this strategy,

Alaska Natives made an explicit claim to citizenship and sovereignty by exploiting the unresolved nature of land claims. By refusing to wait for the federal government to recognize their land claims and moving forward with timber contracts regardless of legislation that sought to suspend land claims indefinitely, Alaska Natives seized the opportunity afforded them by these settler imperial tensions and asserted their rights as

U.S. citizens to commercially develop the resources that they owned as indigenous

Alaskans.

Debates over the Tongass Timber Act demonstrate how legal constructions of citizenship and indigeneity along with discourses of race and equality served to sustain these very settler imperial ambiguities. Just as Congressional hearings commenced in the summer of 1947, Bartlett set the tone with a threatening letter to James Curry. He warned that if the mill failed to come to fruition, “the Indians would be heavy losers in two ways.”53 First, Alaska Natives would lose economically, and second, “the case of those who deal with the Indians with a heavy hand would be strengthened,” and the

“relationship between the two races, now so promising, would be expected to deteriorate.”54 While Bartlett speculated as to white retaliation, Gruening’s testimony further revealed emerging conceptualizations of citizenship as steeped in notions of capitalist labor that was incompatible with the “exclusive rights” of Native land claims.

He argued, “The Indian of Alaska does not want to be segregated, to be favored, or to be

52 James Curry to Ruth Bronson, May 10, 1947, Sealaska Heritage Institute, Curry-Weissbrodt Papers, Box 1B, File 17.2 53 Bob Bartlett to James Curry, May 29th 1947, Warner Gardner Papers, Box 3, Alaska Native Land Claims, (Harry S. Truman Library). 54 Ibid. 276

discriminated against. He wants to be a full-fledged citizen.”55 He then suggested that

Native demands for compensation for their land had only arisen “because they have been led to believe there was a pot of gold there waiting for them, and they are entitled to have some of it right away.”56 Gruening believed that Alaska Natives were in pursuit of rights and compensation to which they were not entitled and that it was an ill-informed greedy desire for an unfair advantage on account of their race that drove them to make claims of indigenous land ownership.

Gruening’s vision of “full-fledged” citizenship for Alaska Natives was embodied in the notion of the year-round wage laborer whose purest expression of his citizenship was through an opportunity to labor under conditions “equal” to that of his fellow citizens. In this vein, he argued that the end of Jim Crow in Alaska had made this vision a possibility and that “nothing will be more beneficial to the economy of the Indian population” than the “advantages of full employment.”57 His equation of Native land claims to a fanciful “pot of gold” reveals Gruening’s understanding of land claims as a preposterous and unwarranted advantage to which Alaska Natives were not entitled on account of their equal access to labor. Gruening’s limited vision of citizenship was an expression of what Ojibwe historian Jean O’Brien has referred to as “the double bind of settler colonialism” in which Indians were required to “adopt the trappings of [the colonizing society] and eschew all other practices Indian.” In doing so they were no longer recognized as Indian—the very designation that identified them as the indigenous owners of the land.58 As Alaska Natives resisted U.S. colonialism by adapting to

55 U.S. Congress, House of Representatives, Hearings Before the Committee on Agriculture, 44. 56 Ibid. 45. 57 Ibid. 45 58 O’Brien, Firsting and Lasting, 119. 277

capitalist wage labor systems as a means of survival, territorial and federal officials seized upon these adaptive strategies as an argument against indigenous land and sovereignty rights. This double bind was even more precarious because of the ways settler imperial legal formations had been founded on the absence of treaties and the recognition of Alaska Native nationhood, therefore necessitating citizenship as a means of political activism. Construed as a hallmark of modernity by Gruening and others, the relationship of labor to citizenship and the discourses of equality that Alaska Natives employed in pursuit of their citizenship rights became the means by which these officials sought to undermine their indigenous rights.

Alaska Native communities refused this logic and instead articulated a vision of citizenship in which the recognition of their land rights as indigenous people guaranteed their fullest participation in the political, social, and economic life of the nation. Andrew

Hope, a Tlingit member of the ANB and the territorial legislature testified adamantly that, “my people up there are certain they own lands even this minute, even if no one else owns land.”59 He argued that they were unopposed to the coming of the pulp industry though he argued that it should be on Tlingit terms with land, resources, and profits remaining under Tlingit control. Furthermore, he rejected the forced induction into year- round wage labor practices that Gruening and others had argued were crucial for the

Indian economy, and suggested that any economic development must make room for indigenous seasonal fishing activities. He maintained that Alaska Natives “ought to be able to use some of the resources” in the national forest which would “allow the Indians to turn this into the employment of manufactured things.”60 His testimony reveals his

59 U.S. Congress, House of Representatives, Hearings Before the Committee on Agriculture, 161. 60 Ibid. 163. 278

understanding that such an economic arrangement was a legitimate expression of indigenous participation in a capitalist economy. To him, citizenship for Native people was best expressed through indigenous economic self-determination realized through the affirmation of Native land ownership.

In this context, the ability of Congress to legislate the timber resources of the

Tongass National Forest out of Native control without meaningful recognition of their land claims was a violation of their constitutional rights and an act of dispossession in itself made possible by sustaining settler imperial ambiguities. Frank G. Johnson, Tlingit

ANB member acutely recognized that the further delay of land claims settlement allowed the federal government to siphon off the commercial and subsistence value of their land.

He lamented that the bill could allow the government to “drag on for, say, 10 or 20 years” the settlement of Native land claims and he argued that these rights to land existed since time immemorial, had been firmly in place through the Russian era, and that a very real and material dispossession had commenced under U.S. occupation. He testified that the

Russians “never bothered about our ownership of the land. They came here with our permission” and that it was only when “the miners came up, then they began to say

Indians could not hold any mineral rights (…) Until recent times nobody paid attention to it until our children were trained to believe the [U.S.] Government owned the whole thing.”61 He continued, asserting a clear legal system for Native property rights prior to the arrival of white settlers:

On this question of whether we feel we own the land, up to that time we stayed in various places. We respected one another’s property as we saw it. We referred to certain areas as belonging to certain families, and while we did not shoot anybody for coming in there, there was a general understanding if you

61 Ibid. 151. 279

came in there you asked permission first.62

He testified that while reservations seemed like a possibility for protecting Native land and resources, they were a contentious topic among many communities. Rather, Johnson sought recognition outside of the parameters of the IRA and in accordance with Tlingit land owning structures that had sustained their economies for generations.

James Curry likewise reinforced the proprietary ownership of Alaska Natives of their land in the Tongass National Forest. He argued that they should not be deprived of their right of “the possibility of developing these resources they have (…) they could develop these resources themselves; they could have a right to make a deal themselves with people to use it.”63 When challenged that he would never get Congress to concede to such an agreement, he responded

That is exactly the position you would be in if you wanted to buy my house; you would have to deal with me before you got it. I think these people have a house and they should be dealt with as property owners.

The arguments advanced by Johnson and Curry represent important challenges to the perpetual uncertainty represented by the Tongass Timber Act and demonstrate the ways in which Alaska Native activists sought to exploit important gaps between non-native concepts of property, reservations as legally constructed spaces associated with

“wardship,” citizenship, and indigenous social, economic, and political systems that held land in particular ways. In this way, they were exploiting important legal spaces on which settler imperialism was both contingent on and vulnerable to. As they continued their

62 Ibid. 152. 63 Ibid. 122. 280

struggle for their homelands, these spaces became sites of power from which they asserted sovereignty and made claims on citizenship.

The struggle for Native land ownership and the meaning of citizenship in Alaska drew the attention of the National Congress of American Indians (NCAI). Napoleon

Johnson, Cherokee, and NCAI President, offered significant testimony in support of

Alaska Natives. He too argued for the recognition of indigenous sovereignty and control over their lands as commensurate with capitalist enterprise, citizenship, and belonging.

He asserted that as citizens, Alaska Natives, and all Native people were “owners of private property [and] are protected by the Constitution from having that property taken from them by the Government and awarded to other private interests.”64 Rather than rendering Native land rights untenable, Native citizenship as expressed through capitalist labor practices, made possible through civil equality, actually guaranteed those rights. He continued:

To be forced to sit by helplessly while a government official advertises and sells the principle crop of the land that he admits you own is enough to break the morale of any community. These people, the owners of the land in southeastern Alaska, are competent to handle their own affairs.65

Here, like Hope, the Peratroviches, and countless other Alaska Native leaders, Johnson articulated an important vision of citizenship for Native people that rejected the limits imposed through settler colonial logic, which sought to render citizenship and sovereignty as mutually exclusive. This vision of national belonging as accounting for

Native sovereignty and civil equality was and remains fundamental to notions of indigenous citizenship.

64 Ibid. 82. 65 Ibid. 82. 281

Despite overwhelming testimony and petitions against the Timber Act, Congress approved it in the last fifteen minutes of the legislative session and President Truman signed it into law in August, 1947.66

Toward Termination: Alaska Reservations, Race, and IRA Reassessment

As intended, the Tongass Timber Act did little to settle the deepening conflicts over Native land and non-native resource extraction in the Tongass National Forest and elsewhere in Alaska, and debates continued to rage with regard to reservations, Native citizenship, and sovereignty. While Alaska Natives and their attorneys fought the

Tongass Timber Act, territorial and federal officials were also collaborating on legislation that would crumble the IRA in Alaska, and the rhetoric and logic employed in doing so represents an important move toward attempts to unravel the IRA all together. These attempts not only foreshadowed Termination policy, but also reveal the legal gymnastics that lawmakers performed to prevent recognition of Alaska Native nationhood and land by further elaborating on the alleged legal distinctions and constructed ambiguities between Alaska Natives and Native nations in the states. The Tongass Bill had cleared the way for the development of the timber resources in southeast Alaska, but these officials worried that the ability of the Interior Secretary to establish Indian reservations at will in the territory maintained a threat of Indian title over the future of Alaska. In order to resolve these issues, the U.S. Senate moved forward in 1948 with two pieces of legislation designed to rescind existing reservations, repeal the authority of the Interior

Secretary to create them in Alaska, and to terminate the relationship of Alaska Natives to the federal government by transferring the “administration within such territory of laws

66 See U.S. Congress, House of Representatives, Hearings Before the Committee on Agriculture, 44 and Haycox, “Economic Development and Indian Land Rights in Modern Alaska,” for passage and enactment. 282

relating to Indians” to the territorial government of Alaska. These bills were Senate Joint

Resolution 162 and Senate Bill 2037.

When the senate convened hearings for these bills in February and March of

1948, their settler imperial nature and intentions became apparent. In the absence of treaties and the refusal of lawmakers to reckon with Alaska Native land and sovereignty, the exact nature of Alaska Native legal stats, Assistant Secretary of the Interior William

Warne testified that “many white Alaskans [who urge a course of direct expropriation] are of the opinion that no legislation is necessary and that by a mere change in departmental policy we could wipe out Indian land claims. Other white Alaskans (…) suggested that it is up to Congress to pass legislation extinguishing all Indian land titles in Alaska.”67 The very nature of these contradicting viewpoints demonstrate the utter state of confusion and uncertainty that non-natives had perpetuated across Alaska. If, as many had argued, Alaska Natives were not tribes and did not occupy a similar legal status to American Indians, then why was legislation terminating any tribal rights they may be understood to have and abrogating the IRA in the territory even necessary? To echo

Captain Davis’s understanding of the usefulness of this ambiguity from chapter one, if no treaties were made, none could be broken.

Secretary of the Interior Julius Krug perhaps understood the dangerous precedent with regard to Native sovereignty and economic self-determination that such a legislative move foreshadowed. In his written statement he argued that

S. 2037 would terminate any Federal assistance to the natives of Alaska in the conservation and development of Indian lands and resources, terminate authorization for the making of future loans to native communities, including the extension of further loans which are necessary to keep businesses operating, eliminate the right of native communities to develop home rule and form

67 S2037 and SJR162 Hearings page 48 283

chartered corporations for the purpose of carrying on business activities, and repeal the procedures set up by Congress to safeguard native land rights within the Territory.

As with the Tongass Timber Act, issues of citizenship and equality framed the arguments against Native land claims and rights to economic sovereignty. Nebraska

Senator Hugh Butler testified that “I, personally, do not believe that it is wise for any group of our citizens to set themselves up as a separate group from the rest of the people, whether they are Indians, or whites, or any other class of people.”68 He continued that there was no need for a special statute, territorial or federal, to allow Alaska Natives to organize villages or cities and he implied that enacting such a statute might prove unfair in that Indians might have “more rights than whites did.”69 At this point, however, he was reminded by Theodore Haas that “the United States owes a special responsibility to the

Indians” to which Butler retorted that he expects the “Indians and natives to have every right and privilege any citizen has (…) I do not see why they cannot all live under the same laws all the time.”70 In defense of his position, he invoked the Alaska Anti-

Discrimination Act. Butler, like Gruening, interpreted the Alaska Native pursuit of civil equality as part of the transition to full citizenship for which they forfeited claims to their land and sovereignty rights as indigenous Alaskans. Recognizing Native land rights by upholding the reservation orders and the ARA, Butler argued, constituted a violation of the Alaska Anti-Discrimination Act as it would amount to treatment that was not

“accorded every other person in Alaska.” 71

68 Ibid 149 69 Ibid 150 70 Ibid 150 71 Ibid. 243. 284

Again, Alaska Natives forcefully countered both Butler’s concerns regarding equal citizenship and the concerns raised over the development of the territory. Native communities from all over southeast Alaska sent their attorney James Curry to the senate hearings where he presented their petitions against the passage of S. 2037 and SJR 162, which would foreclose reservations as a possibility in the protection of native land and sovereignty. The Alaska Native Brotherhood in Wrangell argued that “the creating of reservations will act as a wonderful development for the Territory,” and Natives in

Hydaburg stated that “there is nothing to hinder timber development on reservations” and that “we want our rights settled in fair consideration without mere token settlement” and they furthermore protested the usurpation of sovereignty inherent in the transfer of

Alaska Native affairs to the Territory of Alaska.72 And, realizing that both bills would deal a deathblow to the IRA, Natives at Hoonah wrote “the Wheeler-Howard Act means to the Indian what the Reconstruction Finance Corporation means to the whites.”73 While the issue of reservations remained controversial in many Native communities, these protests represent the strategic exploitation of the distinct status of Alaska Natives in relation to federal Indian law in that Alaska Natives tailored particular elements of the

IRA in Alaska to their specific circumstances, and they especially took advantage of the provisions by which they could secure funds for economic enterprise. While not wanting to lose the possibilities of reservations, many tribes were opposed to the restrictions they imposed and they also realized the IRA offered the ability to assert economic sovereignty through federal loans that they could employ in a number of ways with or without a

72 Ibid. 273, 277. 73 Ibid. 277. 285

reservation. In this way, Alaska Natives forced open diverse ranges of opportunity within the uncertain legal spaces of the applicability of federal Indian law in Alaska.

In an important victory for Alaska Natives, both of these bills were defeated and

Alaska Native Villages continued to organize under the provisions of the IRA. Despite the failure of these bills, many petitions for reservations were piling up in the Department of the Interior, neglected by Interior Secretary Julius Krug . Then, just days before leaving office, Krug, who had maintained a record of opposition to reservations as an appropriate solution for Native claims despite his fear of complete federal abrogation of responsiblity, issued orders for IRA reservations at three locations: Shungnak and Barrow in the interior and Hydaburg in southeast Alaska. This action touched off a new storm of opposition in Congress, as legislators scrambled to undermine the legality of the reservations and the recognition of Alaska Native sovereignty that they implied.

This issue became a central topic to the confirmation of a new Interior Secretary, and in his confirmation hearings the nominee, Oscar Chapman, made clear that in considering the conflict over land in Alaska, he aimed to revise Indian policy on a national scale. When asked about the recent actions of former Interior Secretary Julius

Krug, Chapman responded that “I would like to answer that question a little more broadly than just to mention the matter of the Alaskan reservations.”74 He continued that “the question of setting up reservations for the natives of Alaska is, (…) like dealing with the total Indian problem of America, quite complex” and that “it has been a long time since

Prof. Meriam’s committee (…) indicated a policy that we should follow (…) I think it is time we took another look, and that we should do it immediately, to see what the policy

74 Chapman confirmation hearings page 12 286

should be.”75 Senator Malone from Nevada chimed in that it was perhaps time to “just back off and take a whole look at the situation (…) to make the Indians people and treat them like people. I think it is time that we review them all.” To this, even Chapman cautioned “remember when you do that you repeal more than 5,000 laws” to which

Malone replied, “that would not be a bad idea.”76

Conclusion

Oscar Chapman’s confirmation as Interior Secretary signaled a broad shift in Indian policy with long lasting and devastating consequences in Alaska and elsewhere. While initial notions of ending the federal relationship and obligations to American Indians may not have originated in its entirety in Alaska, the debates over civil rights and reservations in the territory revealed the form and function of settler imperialism while generating significant momentum for the development of Termination policy. To be sure, Alaska

Natives vehemently resisted these threats to their sovereignty, land, and citizenship in the years that followed when these debates were drawn into another drastic shift in the relationship of Alaska to the U.S.—Alaska statehood. In the early 1950s, a number of statehood bills reached the floor of Congress, and the debates centered on the ability of statehood legislation to extinguish Alaska Native land holdings or to preclude the possibility of future claims against the new state. Embedded within debates and shifts within the relationship of this “incorporated” territory to that which was considered properly national territory, were the settler imperial tensions that underpinned Alaska

Native struggles for sovereignty. As lawmakers sought to alter the relationship of Alaska to the United States, so too did they seek to preclude and foreclose Alaska Native claims

75 Ibid. 12 76 Ibid. 17 287

to sovereignty over their homelands. Alaska Natives defeated these initiatives by once again forging coherence between and exploiting tensions within their legal status within the matrix of federal Indian law and U.S. empire, and in the process exposing the function of “incorporated” territories to those very structures.

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Chapter 6: “It is a state and it is not a state”: Native Sovereignty, Land, and “Incorporated” Territories

In September of 1957 Gertrude Smith, an Alaska Native woman living in

Spenard, Alaska, penned an angry letter to territorial Governor Mike Stepovich concerning the sale of a plot of land in Kotzebue in northwest Alaska on which her family had lived for generations. Occupying this plot in 1957 were Smith’s aged sister

Mary Howarth and Howarth’s daughter, Helen Farquhar. Howarth was in her seventies, and both women were widowed. Smith demanded an investigation into the current status of her family’s land, writing “when it was decided to sell lots at Kotzebue, the people who have lived on a lot for many years were to have first chance to purchase that lot without opposition.”1 She reported that when her sister attempted to do just that, she was told that her plot was in the middle of a proposed roadway and that they would offer her another. However, Smith and her sister later learned that instead of having been selected for the roadway, their family lot had in fact been purchased right out from under them by a man named John Cross. Cross, a non-Native pilot and Kotzebue businessman, had then ordered Smith’s sister and niece off their property.

Just two years prior to his attempt to dispossess Gertrude Smith and her family,

Cross had been a delegate to the Alaska Constitutional Convention. Cross was also a crucial agent in spreading pro-statehood propaganda throughout Kotzebue and the surrounding area.2 Indeed, businessmen and developers, like Cross, had much to gain if statehood became a reality for Alaska, as the new state government would be poised to seize millions of acres of Native land that could then be contracted for development. This

1 Gertrude Smith to Mike Stepovich, September 12, 1957, Alaska State Archives RG 101, Box 4899, Alaska Native Service File 1957-58. 2 M.J. Walsh to Mildred Herman, August 21, 1958, Alaska State Archives, RG 313 Box 3 File 18. 289

reality, of course, was not lost on Smith. In her letter, she identified Cross as an author of the Alaska Constitution and warned Governor Stepovich that if this affront by a prominent member of the “statehood gang” were not corrected, then she would “see that non statehood publishers will learn of this before it is too late.”3 Smith’s demands to the

Governor are significant in two ways: first, her letter demonstrates the deeply entangled relationship of indigenous landownership and statehood. Second, and more importantly, her threat to expose the land theft scheme to the statehood opposition reveals Smith’s awareness that the theft of Native land was fundamental to statehood for Alaska and that she was in a position to disrupt this process of dispossession. Smith’s letter demonstrates that even on the so-called “eve of statehood,” Alaska Natives knew that the territory’s admission to the Union was tenuous, and that in this moment of uncertainty they had a tremendous amount of influence and could stymie any statehood proposal that threatened

Native land ownership.

What Smith may not have known, but which is no less significant in its implications for Native land, sovereignty, and belonging in the conversion of Alaska into a state, is that her deployment of these contingencies spoke to much broader processes and structures in American empire that had been in motion since the purchase of Alaska in 1867. By exploiting the contingent nature of statehood in defense of her family’s land,

Smith’s protest reveals ruptures in long standing assumptions that “incorporated” territories were little more than inchoate states under a term of “apprenticeship” before their inevitable admission to the Union.4 Her threats to block statehood measures for

3 Gertrude Smith to Mike Stepovich, September 12, 1957, Alaska State Archives RG 101, Box 4899, Alaska Native Service File 1957-58. 4 A series of Supreme Court cases distinguished between “incorporated” and “unincorporated” territories, the later occupying a status that neither guaranteed independence or statehood whereas the former was 290

Alaska, then, are significant far beyond Kotzebue. Her letter to Stepovich came at the tail end of a long conflict over the status of Alaska as an “incorporated” territory and intense conflicts over Native land and sovereignty, in a moment of profound realignment of the

U.S. imperial constellation of territories and possessions in the midst of a global Cold

War. Smith was one of many Alaska Natives who harnessed the momentum of this tremendous shift in which more than Alaska was at stake.

The global implications of statehood for Alaska and the ways in which Alaska

Natives influenced this transition are part and parcel of a larger fluctuation in U.S. empire. For example, in Truman’s 1946 State of the Union Address, he described the matrix of U.S. territories and their various relationships with the United States, including the newly acquired Marianas. That same year, the U.S. conceded to Filipino independence, and Alaskans held a referendum in which they voted by a large margin in favor of statehood.5 Likewise, in 1947 the U.S. Congress granted Puerto Ricans the right to elect their own governor and formalized administration over the Trust Territory of the

Carolines, Marianas, and Marshall Islands. Furthermore, in 1950, the administration of

Guam and American Samoa was transferred from the Department of the Navy to the

Department of the Interior; not soon after, the U.S. Senate would ultimately reject the incorporation of Samoa and Guam; Puerto Rico would vote in favor of Commonwealth considered incorporated into the United States and the Constitution applied. The admission of Alaska and Hawaii as states has been cast as the inevitable fulfillment of the promise of statehood to incorporated territories. This thinking is often traced back to Thomas Jefferson’s notion of “empire of liberty” in which all possessions of the U.S. would be on equal footing, namely as states. See Dumas Malone, Empire for Liberty (Appleton-Century-Crofts, 1960); Robert W. Tucker and David C. Hendrickson, Empire of Liberty: The Statecraft of Thomas Jefferson (Oxford: Oxford University Press, 1992. For an examination of the Insular Cases, see the following: Christina Duffy Burnett and Burke Marshall eds., Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Durham: Duke University Press, 2001); Gerald L. Neuman, Tomiko Brown-Nagin eds., Reconsidering the Insular Cases: The Past and Future of American Empire (Cambridge, Human Rights Program, Harvard Law School, 2015); Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire (Norman: University Press of Kansas, 2006). 5 The Philippines had been promised independence in the 1916 Jones Act. 291

status in 1952; the Virgin Islands Organic Act would be revised to allow for an elected governor, and in 1959 Alaska and Hawaii would become the 49th and 50th states of the

Union. What remains to be explored is how this remapping of political relationships constituted an important mutation in American empire and what this meant for the ways in which indigenous Nations and people of these territories responded in protection of their sovereignty, land, and political status. This context is fundamental to understanding settler imperialism and Native relations in Alaska.

In this chapter I argue that the transformation of Alaska from an “incorporated” territory into a state reveals the settler imperial tensions that both characterized the relationship of Alaska Natives to the federal government and the status of the territory itself as constituting “proper” national territory. This process was both driven by and had implications for the way Alaska Natives positioned their relationship to the federal government. The ways in which Alaska Natives leveraged the tensions and ambiguities of settler imperialism in the contests over land and sovereignty throughout the long history of the territory became embedded in the legislative process by which territorial and federal officials sought to admit Alaska to the Union. By examining statehood in the context of the contingency and ambiguity of settler imperial tensions, we see how Alaska

Natives undermined the very form and function of U.S. empire that was designed to allow it to operate in the first place. To capture this, this chapter has two threads: First, I focus on how Alaska Natives responded to various statehood measures before Congress and in the courts, challenging lawmakers, attorneys, and judges who sought to abrogate their land and sovereignty claims. In a choreography of confusion, these lawyers, legislators, and judges made numerous attempts to reconcile Alaska Native land and

292

political sovereignty in a number of ways. Sometimes this took the form of parsing indigeneity from sovereignty and land in which Alaska Natives were held to be distinct from American Indians and therefore not entitled to a recognition of their sovereignty and collective land ownership. Other times similarities were drawn, though only through the manipulation of established legal precedent and tenuous interpretation of the 1867 Treaty of Cession and subsequent statutes regarding Alaska Natives and the nature of the territory of Alaska in relation to the federal government.

Second, I trace the ways that lawmakers, corporate attorneys, and territorial and federal officials debated the insertion or omission of specific clauses regarding Indian land rights in statehood legislation as compared to other western states. I argue that the variations of the language in these clauses and the decisions to include or omit them constituted important maneuvers designed to sustain the denial of a similar legal status of

Alaska Natives to that of American Indians. In doing so, many of these lawmakers and officials sought to free the “future” state from a reckoning with collective Native land and sovereignty claims. Alaska Natives and their attorneys, however, responded in ways that forced changes in the legislative process of statehood that did not foreclose any of the objectives they had for their vision for sovereignty, land ownership, and belonging. In doing so, they achieved an ultimate statehood bill with a Native land disclaimer not unlike those in other recently admitted contiguous states. The long history of Alaska

Native resistance to complete inclusion within frameworks of federal Indian law determined that such a disclaimer would neither proscribe nor predetermine what these claims would look like in the future state. Even after statehood Alaska Natives leveraged

293

this fluidity in a struggle that culminated in the Alaska Native Claims Settlement Act over a decade after Alaska became the 49th state.

It is important to know that the admission of both Alaska and Hawaii as states constituted important legal anomalies with regard to indigenous Nations.6 Equally important is that an examination of the territorial and jurisdictional exclusions in both cases in the transformation from “incorporated” territory to state also reveal profound implications with regard to the broader structure of U.S. empire and settler imperial relations. Many lawmakers in the mid-century debates of Alaska and Hawai’i statehood referenced statehood in terms of fulfilling a promise to the “last” of the nation’s

“incorporated” territories. I argue that this was and is an important error.7 When Hawaii was admitted as the 50th state, the new state’s boundaries excluded the tiny atoll of

Palmyra, which had been included in the “incorporated” territory of Hawaii. By

6 First and foremost, it is important to know that Alaska and Hawaii came into the Union under profoundly different conditions than did any other state in terms of the federal government’s relationships with indigenous Nations and these distinctions are fundamental to understanding present day relations in these two states. As we have seen in previous chapters, the legal ambiguity of settler imperialism in Alaska had framed the ways in which Alaska Natives manipulated their relationship to the federal government and made claims on land, sovereignty, and national belonging. In doing so, they sustained important tensions in their legal status that is reflected in the current organization of Alaska Natives into regional corporations with a decidedly distinct arrangement of land holding as opposed to that which characterizes indigenous relations in the contiguous states. It is fundamental to know, too, that the Kanaka Maoli in Hawai’i occupy a distinct legal status with the U.S. Federal government as well. Scholars emphasize that at no time during the illegal overthrow of the Kingdom of Hawai’i in 1893 and subsequent annexation in 1898 and statehood in 1959, did Native Hawaiians relinquish their sovereignty as an independent Nation. Through their continuous claims to sovereignty under international law and their refusal to consent to U.S. Federal recognition, they have secured an important legal position outside the realm of federal Indian law as applicable in the contiguous states. See J.Kehaulani Kauai, “Hawai’i in and out of America,” Mississippi Review, Vol. 32, No. 3 (Fall, 2004), pp. 145-150; Kauanui, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity (Durham: Duke University Press, 2008). 7 See Christina Duffy Burnett, “The Edges of Empire and the Limits of Sovereignty: American Guano Islands,” American Quarterly, Vol. 57, No. 3, (Sept., 2005), pp. 779-803. In this article, Burnett describes the admission process of the new state of Hawaii in which the United States admitted the entirety of the Hawaiian atoll except the tiny cluster of islands known as Palmyra, which had been included as part of the “incorporated” Hawaii territory. Excluded from statehood Palmyra remained an “incorporated” territory, and is thus situated “in the Constitutional heartland” of the United States despite having no population save one seasonal caretaker. This uninhabited group of islands, according to Burnett, reveals that the reality of U.S. overseas expansion and imperialism is in many ways “about the management of national boundaries as much as it is about their expansion.” 294

designating Palmyra as outside the bounds of the new state, the United States was able to maintain federal control over the islands. At first glance, this may not seem important, but as we will see in the following analysis of Alaska statehood, these conscious exclusions served distinct purposes within the broader frameworks of U.S. empire in the

20th century. The conflict over Alaska statehood, then, also reflected the utility of

“incorporated” territories, belying their status as merely “pre-states.”

In this context, this chapter zooms outward and analyzes the ways in which settler imperial objectives in the Cold War likewise became embedded in Alaska statehood, revealing the role that “incorporated” territories played at the “edges of empire.” While

U.S. empire was in a state of realignment after WWII and throughout the 1950s, the ultimate legal and political destinations of its component peripheral parts had no predetermined terminus, and an analysis of the proposed alternatives to statehood for

Alaska reveal this fluidity and the murky nature of the doctrine of “incorporation” and the uses of “incorporated” territories. While the administrations of Truman and Eisenhower each recognized the vulnerability of the possession of colonies during the Cold War,

Eisenhower especially hesitated to relinquish “incorporated” territories to statehood, where federal authority would be diminished. Statehood became contingent on these objectives, and in the end each “incorporated” territory came into the Union with exceptions that, in the case of Alaska’s final statehood bill, led one congressman to exclaim in frustration that Alaska “is a state and it is not a state!”8 I argue that this outcome was Eisenhower’s intended purpose, and that if Alaska were to enter the Union, it would do so under a permanent “state of exception” in which the legal relationship of

8 Cong. Rec. Senate, June 24, 1958, 12017. 295

the state of Alaska could be willfully suspended in response to imperial objectives or necessities.9

While most historians cite economic or population insufficiencies, partisan politics, or non-contiguity as the major barriers to statehood—and indeed, these issues are the subject of countless pages of congressional records, hearings, and reports—they fail to understand the centrality of “incorporated” status as serving any other function other than an apprentice period for future states.10 This understanding of “incorporated” status dictates that a territory’s function is directed inward as part of the nation. I argue that it importantly does the work of both inside transformations and outside projections—and that the outward looking purposes of “incorporated” status are fundamental and often overlooked element of U.S. empire. This tension, what Christina Duffy Burnett describes as a peripheral “wobble” and what I argue is at the heart of settler imperial structures, exposed important gaps within these formations that Native people exploited, prying open important legal and political spaces within which they carved out and defined their relationship with the federal government, protecting their sovereignty and land. The tensions between these multiple and competing interests all played important roles in the

9 In thinking about Alaska in these terms of uncertainty and ambiguity, Agamben’s theorization of the “state of exception” is particularly useful. He writes that “the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other.” In this zone is the “suspension of the norm,” what I suspect characterizes Alaska within the juridical and the political, making it so difficult for territorial and federal officials, lawmakers, judges, etc. to reconcile Alaska Native sovereignty, citizenship, land, belonging, within known legal and political frameworks. In the Cold War, the ability of the federal government to operate outside the bounds of the law was imperative, and created problems in the process by which Alaska and Hawai’i were admitted to the Union. See Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005). 10 See Stephen Haycox, Alaska: An American Colony (Seattle: University of Washington Press, 2006); Clause M. Naske, 49 At Last!: The Fight for Alaska Statehood 3rd Edition (Kenmore: Epicenter Press, 2009); Peter Metcalfe, A Dangerous Idea: The Alaska Native Brotherhood and the Struggle for Indigenous Rights (Fairbanks: University of Alaska Press, 2014). 296

statehood debates, and this process shaped the form and function of U.S. empire, understandings of incorporated territories, nation, and Indian law.

“A second type of Indian title”: Aboriginal Title, Statehood, and Miller v. U.S.

The WWII and the Cold War eras were not the first time territorial officials attempted to convert Alaska from a territory into a state. Four years before Alaska officially became an “incorporated” territory in 1912, Territorial Delegate James

Wickersham proposed statehood legislation before Congress. There were no other attempts at statehood, however, until Delegate Anthony Dimond, through Senators

William L. Langer and Pat McCarran, brought statehood legislation to Congress in 1943.

While the bill did not receive much attention, it is worthwhile to note that the War

Department felt that a response was warranted. They stated only that the military prosecution of the war necessitated that they prefer “that if enacted, the execution thereof be postponed until the cessation of the present hostilities” on the grounds that “the transition from Federal to State control of this Territory” would possibly “result in circumstances which would interfere with the overall prosecution of the war effort.”11

While Alaska historians tend to focus on Interior Department objections such as a low population and seasonal economy, it is clear that contests over federal control of Alaska as a means to maintain U.S. hegemony in the twentieth century also became a primary factor in subsequent statehood debates. In fact, it is highly likely that the War Department in 1944 was concerned that a new state sovereignty, if granted over the entirety of the territory, could jeopardize the 48.8 million acres of land the federal government had already withdrawn for defense purposes under the provisions of PL-82. These withdrawn

11 Henry Stimson Secretary of War to Ernest Gruening, March 23 1944, File 279, Box 62 (Ernest Gruening Papers, Rasmuson Library Arctic and Polar Regions Collections, Fairbanks, Alaska). 297

acres remained out of the public domain well into the 1950s.12 Regardless, the status of land in Alaska took a more important turn when statehood was again brought before

Congress four years later after WWII, but in the midst of a deepening Cold War.

On January 3, 1947, Territorial Delegate E.L. Bartlett brought H.R. 206, a bill to provide for the admission of Alaska to the Union, before Congress, commencing over a decade of intense congressional deliberations concerning the conversion of the United

States’ first noncontiguous territory into a state. Territorial and federal officials esteemed statehood status for Alaska as a gesture to democratic ideals in an international environment increasingly characterized by crystallizing Cold War tensions in which the possession of colonies by the United States had become a popular target of Soviet propaganda. Indeed, just the year before, the Interior Department had exclaimed “Alaska is as American as baked beans, hominy grits, and apple pie. (…) It is part of the United

States, like Wyoming and Alabama” in an effort to dispel those claims.13 Whatever anxieties this statement was meant to quell, its dubious accuracy and implications loomed large in congressional hearings for Bartlett’s statehood measure in the spring of 1947.

William Baker, a prominent Ketchikan newspaper editor, lamented the impression that

Alaska’s colonial status gave the rest of the world, stating “if we send troops and emissaries to inquire into the election in Bulgaria, the Russian Government could again say to us, ‘What are you going to do in your own back yard?’”14

12 Bill Egan to Fred Seaton, July 16, 1959, Eisenhower Library, White House Central File, Official File 1953-1961, Box 630, File OF 147 D Alaska 8. 13 Department of the Interior Division of Territories and Island Possessions, “Alaska,” (Washingotn D.C.: United States Government Printing Office, 1946) 1. 14 U.S. Congress, Hearings on the Subcommittee on Territorial and Insular Possessions of the Committee on Public Lands House of Representatives, 80th Congress, 1st Session on H.R. 206 and H.R. 1808 (Washington, 1947), 106. 298

Importantly, these hearings also coincided with two other developments of paramount significance: the height of the controversy over and subsequent passage of the Tongass

Timber Act, and the United States 9th Circuit Court of Appeals decision in Miller v.

United States, a lawsuit brought by a group of Tlingit in southeast Alaska against condemnation proceedings that the U.S. had brought against their lands.15 This case had significant implications for the relationship of Alaska Natives to the federal government and their land and sovereignty, and consequently, the proposed state of Alaska.

Significantly, in the context of this litigation and the Tongass Timber Act controversy addressed in the previous chapter, H.R. 206 contained no provisions or disclaimers regarding the disposition of Native land under the proposed new state of

Alaska, drawing immediate protest from Native communities. James Curry, an Indian rights attorney representing Alaska Native interests against the assaults of the Tongass

Timber Act, issued a statement in response to this “very important omission” in Bartlett’s statehood bill. He protested the “lack of any provision similar to those which are universal in western statehood bills providing for the protection of Indian property rights” and threatened that “it goes without saying that” without such a provision “the Alaska

Native Brotherhood and the National Congress of American Indians, and all of the various local organizations affiliated with both central groups will be opposed to the adoption of this bill.”16 In the same vein by which Curry defended against the appropriation of timber resources of the Tongass Timber Act, he likewise argued that while Alaska Natives sought the economic development that statehood could bring, they

15 Miller et. al. v. United States, 159 F.2d 997 (9th Cir. 1947). 16 Statement of James Curry in U.S. Congress, Hearings on the Subcommittee on Territorial and Insular Possessions of the Committee on Public Lands House of Representatives, 80th Congress, 1st Session on H.R. 206 and H.R. 1808 (Washington, 1947), 428. 299

would not support development plans that disregarded their ownership of the land and these resources as indigenous Alaskans.17

Indeed, William Paul Jr. (Tlingit) also issued a statement on behalf of the Alaska

Native Brotherhood claiming that the provisions “contained in most western statehood acts is satisfactory.” He added many Alaska Natives supported statehood as a means to achieve “home rule over fisheries” in which Alaska Natives would have a voice in fisheries management and resource allocation through representation in the new state legislature.18 In these statements, both Curry and Paul Jr. established a position in which they sought the inclusion of language similar to that of legislation concerning previous future states in which the new states disavowed claims to Native land. Paul’s statement regarding home rule of the fisheries is similar, as territorial and state control over fish resources had been customary in the contiguous territories and states. This had not been the case in Alaska where federal control over fisheries, coupled with sustained uncertainty over the legal status and the rights of Alaska Natives to land and sovereignty over resources, had allowed corporate fishing enterprises to exploit fish resources without reckoning with Native rights.

Despite the fact that H.R. 206 contained no provision for the protection of Native land and resources, the tensions and ambiguities regarding Native land rights were present throughout the hearings. Questions surrounding just what the Tongass Timber

Act had accomplished along with the confusing Miller decision hovered over the bill. The

Tongass Timber Act, discussed at length in chapter five, was a settler imperial piece of legislation designed to maintain a status quo of non-recognition of Indian status of Alaska

17 Ibid. 429. 18 Ibid. 429. 300

Natives and therefore sustain persistent uncertainty surrounding land claims. The language of the bill allowed for the harvesting of timber while leaving open the possibility of compensation for Alaska Natives should future courts determine that they had legal claims to the land and its resources. The uncertainty that this bill generated plagued the congressional hearings for H.R. 206, when H.L. Faulkner, a Juneau based attorney representing mining interests, argued that “the threat of those Indians’ claims is still held over the territory” and “they are the threat that is held over anybody who wants to go up there […] whether it is a paper company, mining company, or any other company.”19

The decision in Miller, issued in February of 1947, compounded the ambiguity surrounding the relationship of Alaska Natives to the federal government and further crystallized the framework of settler imperialism in the territory. The Court held that aboriginal title had been extinguished in Alaska, but that curiously, another kind of

Indian title remained. In its decision, the Ninth Circuit Court of Appeals concluded that

Article VI of the 1867 Treaty of Cession had effectively extinguished “tribal” land rights.

The court argued that the United States government had paid an additional $2,000,000 to the Russian government for the inclusion of Article VI, which read:

The cession of territory and dominion herein made is hereby declared to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions, by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties except merely private individual property holders.20 (Emphasis original)

Based on this Article, the court argued that at the time of the Treaty, “whatever

‘possession’ the Tlingit Indians had was a tribal and not an individual right, and did not come within the classification of the excepted ‘private individual property.’” Because the

19 Ibid. 126,134. 20 Miller v. U.S. 301

Treaty only protected “private individual property” and not “tribal property,” the Court concluded “consequently, the Tlingits’ “original Indian title” and by default, Tlingit sovereignty, was “extinguished by that state paper.” In furthering their conclusions, the court then turned to the “use and occupation” clause in the 1884 Organic Act, which had included a clause that protected “Indians [in Alaska] and other persons of any lands actually in their use and occupation.”21 In conjunction with their understanding of Article

VI of the Treaty of Cession, they concluded that the language in the Organic Act pertained only to a temporary possessory right of Alaska Natives established through occupancy. However, through the phrase “other persons,” they concluded that the protections offered by the clause applied equally to white settlers. While this individual

“temporary” possessory right represented to the Court a “second type of Indian title” that was, somewhat like collective title, compensable, it was not collective aboriginal title.22

Herein we see a settler imperial entanglement in the parsing of indigeneity from land and collective sovereignty. The Court’s decision interpretation of the use and occupation clause in the 1884 Organic Act along with their conclusion that tribal property ownership had been extinguished in the 1867 Treaty of Cession rendered the legal relationship of

Alaska Natives to the federal government regarding land rights as essentially no different than that of white settlers. To the Court, indigeneity and the recognition of collective

Native nationhood and collective land ownership as had been customary in the contiguous states were inconsequential. In support of these conclusions, the court referred to Cherokee Nation v. Hitchcock and the determination that “whatever title the Indians

[Cherokee] have is in the tribe, and not in the individuals” and they argued that such was

21 Laws of Alaska 23 Stat. 24-May 17, 1884. 22 Miller v U.S. 302

not the case in Alaska after the 1867 Treaty of Cession extinguished collective Indian title in the territory.23 By concluding that the rights of occupancy and possession of

Alaska Natives were no different than those held by their white settler “neighbors,” the court cleaved indigeneity and sovereignty from land. In this way, the Court located

Alaska Native land ownership outside the frameworks of Indian law. The recognition of this second type of Indian title, while containing many of the hallmarks of Indian title as described by Chief Justice John Marshall in Johnson v. McIntosh, was different and these distinctions underscored debates over Native land rights in Alaska from the Treaty of

Cession to midcentury statehood conflicts.

The settler imperial nature of the court’s ruling becomes especially clear in these hearings, and while likely unbeknownst to the discussants, their debates reveal that the decision cut two ways: Miller apparently denied aboriginal title in Alaska, but in affirming a second type of title, the decision perpetuated uncertainty about what the

Treaty of Cession had actually accomplished. After reviewing the Miller decision for some time, Faulkner argued that the affirmation of Alaska Native rights to bring claims for title recognized through use and occupancy “keeps the whole thing agitated, and perhaps will for years.” To this, Representative William Lemke from North Dakota mused “if those claims are valid, then we really did not get anything from Russia, is that correct? (…) If they claimed the whole thing, then even the money we paid to Russia was given away, because it belonged to the Indians, not Russia? (…) We bought it from the wrong party.” Faulkner flatly replied, “Yes; we bought it from the wrong party.”24 This

23 Ibid. 24 Hearings before the Subcommittee on Territorial and Insular Possessions of the Committee on Public Lands, House of Representatives, Eightieth Congress, First Session on H.R. 206 and H.R. 1808, (Washington DC: United States Government Printing Office, 1947), 139. 303

exchange is particularly telling because in it, these lawmakers acknowledged the possibility that some sort of Indian title, whatever it may be, was held by Alaska Natives.

Their attempt to articulate this Indian title, while simultaneously disavowing collective political sovereignty, potentially jeopardized the legitimacy of U.S ownership over what they thought they had purchased. In doing so, and in Lemke’s questioning of the validity of the sale—that the U.S. had bought Alaska from the wrong party—these officials effectively ruptured long-standing assumptions of Russian sovereignty over Alaska and in doing so, they inadvertently affirmed the very existence of Native sovereignty that they were desperately attempting to dismiss.

Perhaps realizing the quagmire in which they found themselves, and eager to back their way out, Faulkner drew on the long-standing tensions with regard to the relationship of Alaska Natives and the federal government in order to dispel the notion that this second type of Indian title could be interpreted to affirm Native ownership of Alaska, and by default, Native sovereignty as opposed to Russian sovereignty. He argued that “the

Indians in Alaska are different from the Indians in the States (…) they were not divided into distinct tribes. There is nobody you can deal with in authority, and the right to citizenship was extended to them.”25 As we have seen in previous chapters, the ability to maintain the distinctions between American Indians and Alaska Natives on the basis of how territorial and federal officials recognized collective political sovereignty was paramount to these officials’ attempts to appropriate Alaska Native land. These distinctions became the means by which the “statehood gang” attempted to dispossess

Alaska Natives and disavow their sovereignty in subsequent statehood legislation.

However, in these statehood hearings we see that by affirming a second type of Indian

25 Ibid 136. 304

title to Alaska Natives based on “use and occupancy,” these officials realized how little the Miller case had actually resolved.

This particular statehood bill was not adopted; however, the tensions that emerged during its consideration underscored the next attempt at Alaska statehood. The following year, Delegate Bartlett introduced another statehood measure and in conceding to Alaska

Native protest, included a general disclaimer in the language of the bill. The disclaimer read as follows:

That said State and its people do agree and declare that they forever disclaim all right and title to any lands or other property, the title to which is retained in or ceded to the United States by the provisions of this Act and to all lands lying within its boundaries owned or held by any Indian, Aleut, or Eskimo hereinafter called native, or by any native tribes the right or title to which shall have been acquired through or from the United States or any prior sovereignty.26

The bill was referred to the Committee on Public Lands where Republican representative

Wesley D’Ewart of Montana deleted the phrase “or by any native tribes” from the disclaimer. This maneuver deliberately struck at the core of conceptualizations of collective political sovereignty that these officials associated with American Indian

Nations of the contiguous states. When reported out to the House, the committee insisted that the deletion was no more than a play on words, justifying their actions as “merely

[making] the terminology of the bill consistent” with “terminology customarily used in describing native groups in Alaska.” The committee insisted that such a change “would neither add to nor subtract from such rights and such authority, but would simply maintain the status quo.”27 (emphasis added)

I argue that this refusal to recognize collective political sovereignty vested in the land represented an attempt by federal officials to exploit the contradictions generated by

26 H.R. 5666, File 14.9. Box 1B, (Curry-Weissbrodt Papers, Sealaska Heritage Institute, Juneau, Alaska). 27 80th Congress 2nd Session, House Report No. 1731. 305

a settler colonial policy implemented in an imperial space. While acceding to a disclaimer, the committee was careful not to recognize tribal status and therefore potentially recognize the collective sovereignty and land ownership of Alaska Natives.

The “status quo” the committee referred to had sustained the denial of a legal status for

Alaska Natives similar to that of American Indians in which the recognition of nationhood (even a dependent nationhood) and collective title to land had been more or less customary. Insisting that Alaska Natives were not tribes was an attempt to classify

Alaska Natives as legally distinct from American Indians in their relationship to the U.S.

The possibility of statehood and the insistence of Alaska Natives on a disclaimer similar to those of other western states threatened the ability of lawmakers to maintain that ever important “status quo.” To counter the possibility that land in territorial Alaska was subject to Native sovereignty, D’Ewart and others objected to the word “tribes.”

Alaska Natives recognized immediately the limitations that such legislation could put on their ability to lay claims against the federal government and the proposed state of

Alaska and they responded with a number of letters and petitions declaring their opposition to the omission of the word tribe. In petitions sent to Congress through the

Alaska Native Brotherhood, they argued that “it has been the unbroken policy of the

United States for more than 60 years to require each incoming State of the Union to agree to recognize Indian possessions of every character, tribe as well as individual.” They reminded Congress that “approximately 126 native reservations have been established in

Alaska in which title to land is vested in tribes or other communities.” In crafting this argument, Alaska Natives aligned their experiences and the policies of the federal government in Alaska with those of American Indians and federal Indian policy in the

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contiguous states.28 Significantly, these petitions also accounted for important diversity within Alaska Native political organization and distinctions that existed between themselves and American Indians with the phrase “other communities.” Thus while they contended for reservations and tribal organization as a legitimate vehicle for political rights and land ownership, they left open an important range of possibilities. While many of these reservations and the policies that created them differed in significant ways, the

Alaska Native Brotherhood and Alaska Native Sisterhood insisted that in their very creation and the simultaneous and continued recognition of additional varieties of Native community organizational structures, that the federal government had affirmed Native sovereignty which it had no right to extinguish in statehood legislation.

Furthermore, they rejected the assumptions inherent in the Miller decision from the previous year. In a poignant letter sent later in 1948, Amy Hollingstad, Alaska Native

Sisterhood Grand Camp President, wrote angrily to Delegate Bartlett “it is political childishness to claim that we have no rights here because the Russians did not grant us reservations in the Russo-American treaty. Any right thinking American would not deny us justice just because we were denied justice by former conquerors.”29 To Alaska

Natives, their sovereignty and rights to the land were not vested in assumptions held by either the Russians or the Americans, nor were these rights contingent on the treaty that those two parties had signed without Alaska Native consent. By responding to statehood and the usurpation of land and resources in this way, Hollingstad and others hoped to demonstrate the persistence of Alaska Native sovereignty to territorial and federal

28 Petitions of the Alaska Native Sisterhood of Petersburg, Angoon, Sitka, Klawock, File 14.9. Box 1B (Curry-Weissbrodt Papers, Sealaska Heritage Institute, Juneau, Alaska). 29 Amy Hollingstad to Bob Bartlett, File 11.16, Box 1A, (Curry-Weissbrodt Papers, Sealaska Heritage Institute, Juneau, Alaska). 307

officials and that these rights had been affirmed by the long history of policy in Alaska, most recently in the extension of the IRA to the territory.

“To become good citizens of Alaska, the future state”: Reservations, “Wardship,” and Indian Law in Alaska

It should not be surprising, then, that subsequent statehood bills took aim at the extension of Indian policy in Alaska. In early 1949, Bartlett introduced yet another statehood measure, H.R. 331, and after pressure from James Curry, an Indian disclaimer was inserted into the bill, though it retained the contentious omission of “tribe or tribes.”30 This bill passed the House and moved on to the Senate in the spring of 1950 where it was referred to the Committee on Interior and Insular Affairs. Committee hearings on the bill in late April centered on land, resources, and the existence of aboriginal title and the implications that indigenous citizenship, sovereignty, and land rights, particularly those recognized through the extension of the Indian Reorganization

Act (IRA) to the territory, could have on Alaska as a potential state. As discussed in the previous chapter, the application of the IRA to Alaska had generated great controversy in the conflict over Alaska Native claims to fish and timber resources and these debates had exposed the settler imperial tensions regarding the relationship of Alaska Natives to the federal government. Because territorial and federal officials believed that Alaska’s ability to economically afford statehood was contingent on unfettered access to these resources, the unresolved nature of Alaska Native claims became deeply embedded in statehood debates. Specifically, lawmakers and territorial officials focused on the amendments to the IRA that allowed the Secretary of the Interior to create Indian reservations at the request of Alaska Natives. Senator Joseph O’Mahoney from Wyoming submitted to the

30 Metcalfe, A Dangerous Idea, 70. 308

record a number of letters he had received from Alaskans opposed to the bill, many of whom made reference to the potential for H.R. 331 to recognize Native land claims. One concerned Ketchikan resident exclaimed that he “emphatically disapprove[d] of statehood under” the current bill and that Alaskans wanted “a bill definitely defining our rights in the fisheries and the lands and resources. Our grants should be unburdened of

Indian claims and extensive government holdings,” the existence of which threatened the financial stability of the proposed state.31

Testimony throughout the hearings further reflects the attempts by territorial and federal officials and corporate agents to render Alaska Native sovereignty and land claims as illegitimate through the denial that Alaska Natives occupied a legal status similar to that of American Indians of the contiguous states. As discussed in the previous chapter, at the center of these arguments were the ways in which these officials rendered

Native sovereignty as only legible through legal understandings of “wardship” and dependency, and the relationship of wardship status to understandings of Native collective landholding in the contiguous states as inherently tied to non-Native conceptualizations of domestic dependent nationhood embodied in Indian reservations.

To these officials, to grant Alaska Natives land rights in the form of reserved lands similar to that in the contiguous states would render them wards—a step “backward” in the assimilation of Native people into the larger body politic of the U.S. This logic was used to maintain distinctions between Alaska Natives and American Indians that underscored non-Native denial of Alaska Native land and sovereignty claims.

31 U.S. Congress, Hearings Before the Committee on Interior and Insular Affairs on H.R. 331 An Act to Provide for the Admission of Alaska to the Union, 81st Congress, 2nd Session, (Washington D.C.: United States Government Printing Office, 1950), 266. 309

Senator Hugh Butler, a major proponent of Indian Termination policy just a few short years later, argued in these 1950 hearings “the Indian [in the states] has been a ward of the Government continually, and that has not been the case up to date in Alaska.”32 His fellow Senator Ecton, from Montana, mused that “it seems…that it would be a mistake to place some of these natives on reservations when to all appearances they are perfectly able…and willing to take their places as citizens.”33 By positioning the status of Alaska

Natives as having “advanced” beyond a status of “wardship,” Butler and Ecton attempted to render reservations and the recognition of aboriginal title in Alaska that these reservations seemed to confirm as unnecessary, serving only to undermine Alaska Native citizenship, and to pose a burden to the proposed state. Senator Butler threatened that the bill, as written, forced the future state to acknowledge “that there is an aboriginal right and that in fact parts of Alaska, if not every foot of Alaska actually belong to the few natives that were there when we took it over from Russia.”34

Frank Peratrovich (Tlingit) testified in response to these claims, and contended that reservations or the recognition of aboriginal title in Alaska threatened neither equal citizenship for Alaska Natives nor the future state of Alaska. His testimony also reveals the extent to which the expropriation of natural resources by non-Natives was contingent on maintaining legal distinctions between Alaska Natives and American Indians.

Additionally, Peratrovich exposed how Senators like Butler and other territorial and federal officials were deploying citizenship to achieve these ends and he used as his example the conflict over rights to fish. Peratrovich argued that statehood was not threatened by indigenous land and sovereignty rights, but rather was contingent upon

32 Ibid. 77 33 Ibid. 77 34 Ibid. 149 310

them. As long as Alaska remained a territory, the commercial fisheries could “protect the fish traps from Alaska’s voters,” and to do so they had “interjected into this hearing, pointing out the contention that such withdrawals” of land and water such as the recently established Hydaburg Indian reservation would “handicap the new State and its industries.”35

Peratrovich continued that by inciting fear over the recognition of Indian title, the fisheries could ensure the defeat of statehood legislation and maintain the cloud of uncertainty over Native claims that had been conducive to their abilities to continue the extraction of resources from Native land without reckoning with indigenous rights.

Peratrovich countered these assumptions and argued instead that reservations and government loans that Native communities such as Hydaburg had secured through the

Alaska “amendment to the Wheeler-Howard Act…had given Indian communities and

Indian fisherman…a chance to earn their way and become good citizens of Alaska, the future state.”36 To him, the recognition of collective Native land rights did not amount to wardship status but rather facilitated citizenship and inclusion within the social, political, and economic life of the territory and future state. In arguing as much, he sought to carve out a legal space both within and outside the frameworks of Indian law as applied in the contiguous states.

Despite Peratrovich’s testimony regarding the centrality of Alaska Native land and sovereignty rights to the economics of the “future state,” the committee attached an amendment to H.R. 331 that rescinded the orders of the Secretary of the Interior that had established “the Akutan, Karluk, Wales, Unalakleet, and Venetie, or any other Indian

35 Ibid. 287 36 Ibid. 287 311

reservations in the Territory of Alaska,” and repealed Section 2 of the Alaska

Reorganization Act that had established the authority of the Interior Secretary to establish such reservations.37 Not surprisingly, offering testimony in support of the amendment was W.C. Arnold, attorney for the salmon packing industries. In his testimony, he wove a narrative within which we can see the settler imperial tensions regarding Indian status in

Alaska. He argued that by the time the United States acquired Alaska, the federal government had ceased treating with Indians and that “no Indian wars were fought, such as characterized the development of the western domain” and Alaska Natives “were never segregated or placed on reservations” and “the United States never treated with them.”38

While it is worth pointing out that important parts of his statement are incorrect (the

U.S. Army and Navy had engaged the Tlingit in war on a number of occasions in the 19th century) his attempts to exempt Alaska Natives from the long history of federal Indian law and policy is telling. He continued that because of these important historical differences “it is incredible that Congress at this late date would intend to grant rights comparable to original Indian title in Alaska” and he cited as his evidence for these continued legal distinctions the inapplicability of the Indian Claims Act of 1946. This Act had allowed American Indians to bring claims against the United States for lands and rights guaranteed in treaties. Since Alaska Natives had not signed treaties and furthermore were not organized as “tribes” in relation to the United States, they were not eligible to bring claims in the Indian Claims Commission. To Arnold, Butler, and others, these distinctions sustained their arguments that Indian law and policy such that would

37 Ibid. 347. 38 Ibid. 348. 312

acknowledge similar claims on land and resources by Alaska Natives were simply inapplicable.39

Just moments later Arnold offered a number of contradictory statements that reveal the settler imperial ambiguity swirling around these issues and the inability of these officials and witnesses to locate Alaska Natives within the frameworks of Indian law and policy. He continued to rail against the provision in the IRA amendments that had given the Interior Secretary the authority to create Indian reservations, and he offered as evidence the claim that as a result of the 1936 IRA amendments for Alaska, the method by which Alaska Natives assert land rights was fundamentally different than how

American Indians asserted land and sovereignty rights. He argued “the two are quite different. Under aboriginal title, the natives claim against the United States, and under the

1936 law the United States grants the lands to the Indians…no such authority exists in the

Continental United States.”40 By bemoaning the new authority of the Interior Secretary to create reservations in Alaska when such was not the customary process for Indian land claims in the contiguous states, he clearly meant to convey that the status of Alaska

Natives should be designated as indistinguishable from American Indians. Rather than relying on distinctions in policy approaches between American Indians and Alaska

Natives such as the lack of treaties and Indian wars in Alaska he had used only moments before as evidence against the recognition of Alaska Native land claims, Arnold now appears to argue that land policy in Alaska should be congruent with that in the contiguous states. Thus, in his opposition to the Indian land disclaimer contained in the proposed bill, Arnold contended that Indian policy in the contiguous states was not and

39 Ibid. 347 40 Ibid. 351 313

should not be applicable to Alaska Natives because of their distinct historical relationship with the United States while also arguing against the unique ability of the Interior

Secretary to create reservations in Alaska on the basis that Alaska Native land policies should not be exceptional to those of the U.S. This slippage in his arguments reveals the tensions and contradictions of settler imperialism and its primary function, which was to enable Arnold and others to relegate Alaska Native indigeneity and the inherent rights of sovereignty and land that accompanied this designation, as neither inside nor outside the parameters of Indian law and legal precedent.

As a result of Butler’s proposed amendments and Arnold’s logic, H.R. 331 emerged from committee with a new clause that set off an immediate response from Alaska

Natives. Section 5 (1) of the revised bill read:

Pending action by the people of Alaska and the Congress as provided in this Act, no reservations for use and occupancy of the natives of Alaska shall be designated in the Territory by authority of any law of the United States, and no Act of Congress applicable to Indians not now applying to the Territory of Alaska shall be made applicable to the Territory except by specific authorization of the Congress.

This language prevented the Secretary of the Interior from establishing additional Indian reservations and suspended the applicability of Indian law in the territory, effectively sustaining the status quo of legal ambiguity with regard to Native land rights. When word of the clause reached Alaska, the ANB, at their annual convention in November passed a resolution in which opposition to the statehood bill was nearly unanimous. James Curry, in attendance at the convention, wrote a letter to Senator Watkins of Utah in which he described Alaska Natives as in favor of “the Statehood Bill until the ‘joker’ Section 5 (1) was inserted, cheating them of their right to reserve for their own use any part of the

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lands that they inherited from their aboriginal ancestors.”41 Curry’s charge was quickly followed with a number of letters from various organizations both inside and outside

Alaska, Native and non-Native, to U.S. senators encouraging them to vote against the bill unless the anti-reservation clause was removed.42 Their efforts were successful and the bill failed to pass in the legislative session. This did not mean that issues of Native rights were no longer paramount to efforts to attain statehood for Alaska.

“Every schoolboy knows”: Extinguishment Legislation, Aboriginal Title, and Tee- Hit-Ton v. United States

The following year, Bartlett introduced another statehood measure, this time omitting the “provision prohibiting the creation of Native reservations in Alaska during the period before the official proclamation of admission” and Frank Peratrovich indicated that the

ANB would support this version.43 Nearly simultaneously, Bartlett also introduced a separate bill “to settle Native land claims in the Territory of Alaska and to assist the

Natives of Alaska in stabilizing their economy.”44 The bill would establish a special committee to hear Alaska Native land claims before the Indian Claims Commission, and

Bartlett’s arguments as to the need for this special commission revealed the ways territorial and federal officials struggled to reconcile Alaska Natives within the frameworks of federal Indian law and policy. Anticipating questions as to why Alaska

Natives had not already attempted to file claims in the Indian Claims Commission,

Delegate Bartlett referred to a statement offered by former Assistant Secretary of the

41 James Curry to Arthur V. Watkins, November 27, 1950, (Curry-Weissbrodt Papers, Sealaska Heritage Institute, Juneau, Alaska). 42 For examples, see James Curry to Lester C. Hunt, December 8, 1950; James Curry to Arthur V. Watkins, November 27, 1950; Harry Douglas, ANB Grand President at Hoonah to James Curry, November 30, 1950; Box 1A, File 14.2. Box 1A (Curry-Weissbrodt Papers, Sealaska Heritage Institute, Junea, Alaska). 43 Naske, 49 At Last! 44 H.R. 4388 However this was not the first time extinguishment legislation was introduced. In 1948 HR 7002 was submitted to Congress, however after swift and forceful condemnation by James Curry, Felix Cohen, the NCAI and other organizations it was abandoned. See Sealaska, box 1 File 11.7. 315

Interior Warner Gardner. The previous year, Gardner had contended that “the situation” in Alaska “is a little confused because no one can say at this time whether a given tract of land has been taken from the natives or whether the deed has been lost by them. If they still own that land and they still have valid rights to that land [then] they have not a claim to prosecute (...) The major difficulty is that nobody can say whether they have the land now or whether they have lost it.”45 As seen in chapter 5, Gardner and Bartlett’s understanding of the disposition of Native land in Alaska came down to whether or not

Alaska Natives had been dispossessed in a manner recognizable to territorial and federal officials as similar to that which had occurred in the contiguous states. As before, the fact that the U.S. government had not treated with Alaska Natives suggested to Gardner and

Bartlett that real and tangible dispossession had not occurred in the territory and this reasoning functioned to perpetuate uncertainty—in the minds of territorial and federal officials—over Alaska Native land and sovereignty rights. By establishing a mechanism by which Alaska Natives could petition for recognition of land rights, Bartlett’s extinguishment bill attempted to reconcile a longstanding settler imperial paradox by which the recognition of valid claims nullified Alaska Natives’ ability to sue. In other words, prior to this proposal, Alaska Natives who wished to establish claims to the land had to lose them first.

The bill’s parameters posed serious problems for territorial and federal officials, and were deemed unconstitutional by Alaska Natives. While not explicit in the proposal itself, the problem of statehood emerged in early hearings when Representative Bow questioned whether the bill would work in favor of eventual statehood for Alaska. In

45 Hearings before the Committee on Interior and Insular Affairs and the Subcommittee on Indian Affairs on H.R. 4388 A Bill to settle native land claims in the Territory of Alaska and to assist the natives of Alaska in stabilizing their economy, 82nd Cong., 2nd Sess. May 19, 1952 pp. 9-10. 316

response, Bartlett indicated that settling land claims was paramount to achieving statehood, and that “if we go into statehood with that uncertain status, it is not going to be too good.” He contended that extinguishing land claims would “clear the way for the new state” and unlike other western states, Alaska would be unique in that the process of settling claims would not burden the incoming state.46 Bartlett’s bill, then, attempted to free statehood debates from the question of Native land ownership by shifting the jurisdictions for the negotiations and debates from that which would be between Alaska

Natives and the federal government—Congress or the Department of the Interior—to a judicial committee. Ruth Bronson (Cherokee, Executive Director of the National

Congress of American Indians) protested this at hearings in August, 1951. She argued,

“the bill provides for negotiation but only after the principal point to be negotiated has been established by judicial process.”47 In doing so, the bill usurped land claims procedures and Native sovereignty as set forth in the extension of the Indian

Reorganization Act and affirmed by the recent creation of reservations in Alaska under its provisions.

At committee hearings held in Juneau in November of 1951, William L. Paul Jr.,

Secretary of the Alaska Native Brotherhood, advanced Bronson’s opposition to the bill, exposing its provisions as intended to undermine the existence of aboriginal title in

Alaska by abrogating the settlement of Native claims through the IRA. He began his testimony by entering into the record a number of resolutions the ANB had adopted the previous year in which they had demanded the “immediate designation of land reservations under the Indian Reorganization Act” and had vehemently opposed “any

46 Ibid. 25. 47 Ibid 52. 317

legislation which contains provisions limiting or abolishing the authority of federal officials to confirm Native land titles in Alaska.”48 He continued that “it has been the law of our country that Indian possessory rights are perfectly good legal title” and that in that regard, H.R. 4388 was “unsatisfactory, and at several points clearly unconstitutional.”49

He charged that the bill shifted the onus of proof of claims onto the Indians, demanding that the Indians “prove we own what we own,” which was “contrary to established principles of [the] trust relationship.”50 Additionally he argued that the bill, while allowing for hunting and fishing “camps” had deliberately omitted “hunting and fishing grounds from the definition of community and individual lands” that Alaska Natives could potentially claim and also excluded “rights in coastal waters beyond low water mark.”51 Paul contended that these provisions were particularly objectionable because they undercut Native ownership of “capital assets” from which they earned their living.

He argued that “we have always owned the fisheries” and that “we expect to stay here the rest of our lives (…) If these interlopers the absentee canning corporations think they have any legal or equitable rights, let them be put upon their burden of proof, first.”52

Paul took issue with a number of provisions of the bill, and when he arrived at

Section 7 (b) he stated that phrases in this section “reveals the true intent of the bill, namely, it is the latest attempt to take all of our lands from us.” Section 7 (b) would have allowed the Secretary of Agriculture “ex part to substitute a money award for a land award in case he or the Secretary of the Interior cannot force through negotiations with

Natives to give up land.” Such an arrangement represented an attempt to “remove from

48 Hearings before a special committee on H.R. 4388, November 10, 1952, pp. 10 49 Ibid. 11 50 Ibid. 12-14 51 Ibid. 13 52 Ibid. 14 318

the Secretary of the Interior his traditional responsibility to deal with the Indians” and as such explicitly usurped the 1936 amendments to the IRA and attempted to set Alaska

Natives on a distinct bureaucratic trajectory in the settlement of their land claims. This legislative entanglement of departmental authority reveals the ways that these officials attempted to bypass Native sovereignty by undermining established pathways of negotiation. Furthermore, the bill sought to shift the onus of proof to Alaska Natives by granting jurisdiction to the Indian Claims Commission, which would have the final say in whether Alaska Natives owned land or not. To Paul, these bureaucratic maneuvers represented another attempt to take land from its indigenous owners and that the very necessity of additional proposals to settle land claims revealed the problems with prior legislation. He concluded, “we believe that this bill is a recognition that previous attempts by Congress to settle the Indian possessory claims problem, such as the Tongass Pulp

Timber Sale Act, were inadequate to the extent that they were unconstitutional.”53 With this statement, Paul indicted the multiple attempts by the federal government to relegate

Alaska Native land and sovereignty as outside the parameters of federal Indian policy and established doctrines of Native sovereignty and the land and resources guaranteed by that sovereignty.

As the hearings continued, the conversations shifted to the relationship of indigenous citizenship and statehood, revealing that in many ways, the way Alaska would “belong” to the nation was contingent on the ways in which Alaska Natives would belong within the frameworks of citizenship and federal Indian policy. Like before, participants in these hearings emphasized at various times that they believed “the settlement of all claims to lands in Alaska is probably the number one problem” and that “if [the] matter was not

53 Ibid. 17 319

settled it would be a road block to statehood.”54 While many of these officials advocated for statehood, they also conceded that they wouldn’t “want to see Alaska become a state if the state had no assets when it became a state.”55 They contended that Native land claims hampered both the potential development of the “future state” and that of Alaska

Natives. Paul disagreed, and argued that any arrangement between Alaska and the federal government must account for Native sovereignty and land. When questioned whether he thought Alaska Natives should “be placed on reservations, be placed under trusteeship, wards of the government, rather than being fully competent citizens” Paul responded “I believe in self-government,” and when interrogated as to whether reservations constituted class and racial segregation that might undermine Alaska Native status as American citizens, he responded that rather, he saw the provisions of the IRA as the “preservation of property” necessary for Alaska Natives to make a living on equal footing, and that “if the process of being first class citizens will also deprive us of our property than we would prefer to have reservations.” 56

While William Paul Jr. advocated for the preservation of property and self- government under the provisions of the IRA, his father William Paul Sr. struck at the very core of the assumptions on behalf of territorial and federal officials as to what these officials perceived as the unresolved nature of land and sovereignty claims in Alaska. He is worth quoting at some length here as his testimony unearths the objectives of HR 4388 and the bill’s implicit dissolution of Native sovereignty in the procedures for adjudicating land claims. By drawing on the history of Tlingit land ownership and continued sovereignty, he contended,

54 Ibid. 45 55 Ibid. 45, 46 56 Ibid. 26, 27 320

with respect to the so-called ‘Russian occupancy,’ Russia never dispossessed us. When Russia sold Alaska to the United States, Russia only sold what it had. It did not sell what it did not have. With respect to my group it did not so represent, it did not hold, it did not possess one single acre of ground in the whole area. It never pretended to. We were always in possession. We exercised dominion over it just as directly as the Indians did in every case that ever came before the United States Supreme Court.57

He then challenged the committee to explain why this new legislation was even necessary if they agreed with the Miller decision that aboriginal title did not exist in

Alaska. While the courts and Congress had succeeded in maintaining a perpetual state of uncertainty with regard to their understandings of Alaska Native land ownership, to Paul, these matters were quite clear and he answered his own question as to why Congress believed that more legislation was necessary to settle claims. He said, “they know we have aboriginal claims. They know we own the property. Take my particular section we have been covering year after year—through my ancestors—through my mother. We hunt over every portion of it.”58 By exposing the anxieties of territorial and federal officials who disavowed aboriginal title in Alaska while continuing to squabble over its existence in legislation and in the courts, Paul exposed the inherent purpose of the bill: the dissolution of the inherent sovereignty of Alaska Natives over the land they owned as indigenous people.

H.R. 4388 failed to pass the house, but Congressman D’Ewart introduced a revised version in January of 1953. Drafted by Bartlett and Ernest Gruening, H.R. 1921 was similar to Bartlett’s previous bill, though it designated jurisdiction over claims to the U.S.

Court of Claims (where Indian claims had been adjudicated beginning in 1885, rather than the Indian Claims Commission, which had been in existence as a special claims

57 Ibid. 59-60 58 Ibid. 60 321

forum from 1946-1975. Most alarming to Alaska Natives was that in the final section of the bill, D’Ewart had included a clause in which the authority of the Secretary of the

Interior to create reservations in Alaska would be repealed upon enactment of the bill. As

William Paul Jr. had testified in hearings for H.R. 4388—where D’Ewart had been present—many Alaska Natives identified the provisions of the IRA as extended to Alaska as a productive expression of sovereignty and a way to protect their land. Thus D’Ewart’s bill, in addition to embodying a number of the same problems included in H.R. 4388, represented a targeted assault on Alaska Native claims on self-government and land.

D’Ewart insisted upon immediate action on the bill in March of that same year, drawing intense protests from the ANB and the NCAI in which they demanded more time to examine the bill and propose amendments. In hearings before the subcommittee on

Territories and Insular Affairs, tensions regarding the legal status of Alaska Natives and their rights to the land intensified when federal officials attempted to sever Alaska Native land rights from indigeneity and sovereignty in the text of the bill. Section 3 (c) defined

“possessory rights” as “all rights, if any should exist, which are based upon aboriginal occupancy or title,” and many officials worried that the phrase “aboriginal occupancy or title” could possibly affirm the existence of aboriginal title in Alaska despite the conclusion in the Miller decision that it did not, and that only “a second type of Indian title” remained.59 Orme Lewis, Assistant Secretary of the Interior, offered testimony describing his department’s deliberations regarding the bill, lamenting that in discussions as to how Alaska Natives could establish their claims, “in some manner the aboriginal rights crept into the bill” when instead they had intended to “deal [only] with possessory

59 Ibid., U.S. v Miller 322

rights.”60 Citing the long history of ambiguity surrounding official recognition of Alaska

Native land ownership in which various Organic Acts had only committed the government to protecting “use and occupancy” rights, he suggested that an amendment be included in H.R. 1921, stating explicitly that “there are no aboriginal rights, or there are none recognized by the Government” in Alaska. In doing so, he aimed to parse land from indigeneity—and the sovereignty inherent in that designation—that the affirmation of the existence aboriginal title would have established.

As hearings continued two days later, they continued to center on “aboriginal occupancy or title,” and a number of officials offered strong opposition to the phrasing.

Nevertheless, consideration on H.R. 1921 came to a halt when the Department of the

Interior reported that the U.S. Supreme Court had agreed to hear Tee-Hit-Ton Indians v.

United States. William Paul Sr. had filed the case with the U.S. Court of Claims back in

1951 in response to the Department of Agriculture’s taking of timber under the Tongass

Timber Act from lands they claimed in the Tongass National Forest. Significantly, Paul’s legal strategies are a direct response to the federal government’s reluctance to clearly define the legal status of Alaska Natives, and Paul seized the opportunity to force recognition on Alaska Native terms. In Tee-Hit-Ton, Paul claimed that Alaska Natives were not tribes and had never been tribal members, and had therefore never been wards of the government. Instead, he argued that Alaska Natives were citizens and he contended that as such, they could not be deprived of their property without due process as provided for in the Fifth Amendment of the U.S. Constitution. He then took his argument further in contending that clan organization of Alaska Natives, as opposed to a tribe, constituted a

60 Hearings before the Subcommittee of Territories and Insular Affairs and the Committee on Interior and Insular Affairs on H.R.1921, 83rd Cong., 2nd Sess., January 12, 1954, 33-34. 323

particular kind of legal entity in which property ownership had been historically based.

Historian Peter Metcalfe writes that while “Paul did not put it in these terms, their case presented clans as similar to modern corporations, which have every right to sue the U.S. government.”61

What Metcalfe may not have entirely realized though, is that Paul’s strategy reveals his leveraging of settler imperial distinctions between Alaska Natives and American

Indians in such a manner as to persuade the court to recognize aboriginal title in Alaska.

By making claims that Alaska Native political organizational structures lay outside that which the BIA or other institutions were likely to recognize, Paul was perhaps conceding that Alaska Natives were not “tribes” in the sense that lawmakers such as D’Ewart and

Butler defined them. By vesting property ownership in the clan, Paul was arguing that

Native rights to collective land ownership grounded in indigenous sovereignty, existed in

Alaska.

The court disagreed and concluded that the Tee-Hit-Ton did not have a compensable right to land under the Fifth Amendment. Their decision—and the argument put forth by the U.S. government in its own defense—drew on the long history of ambiguity, nonrecognition, and uncertainty that Congress and territorial and federal officials had maintained over the territory since the 1867 Treaty of Cession. The Court decided against the Tee-Hit-Ton on the grounds that Congress had never explicitly recognized aboriginal title in Alaska. Historians Stephen Haycox and Peter Metcalfe contend that this implied that there was, potentially, aboriginal title in Alaska and that Congress could recognize it or not, and they conclude that the significance of Tee-Hit-Ton, then, lies in that it

61 Metcalfe, A Dangerous Idea, 37-38. 324

constituted the “first judicial confirmation of aboriginal title in Alaska.”62 In this context, the mechanics of the decision are worth exploring in detail as they reveal much more about how even the Supreme Court struggled to reconcile Alaska Native land and sovereignty within existing frameworks of Indian law. Most importantly, it demonstrates how Paul sought to define a legal space within which Alaska Native collective claims to sovereignty, land ownership, and U.S. citizenship could be situated.

In his arguments, Paul brought the Miller decision into play, citing that while the

Ninth Circuit court had dismissed the notion of aboriginal title in Alaska, they had conceded to “a second type of Indian title” based on possessory rights affirmed through the “use and occupancy” clauses in both the 1884 Organic Act and the subsequent 1900

Organic Act. He contended that despite the lack of treaties, this decision recognized that the Tee-Hit-Ton had a proprietary interest in the land that the federal government, by these two acts, had sufficiently recognized.63 He disagreed that the Russians had extinguished Tlingit ownership of the land, and he contended that long-standing Tlingit notions of property ownership and their use of the land was distinct from that of

American Indians in the lower forty-eight, and that therefore Alaska Native claims were compensable under the Fifth Amendment. The court rejected these distinctions and the claim that the 1884 and 1900 Organic Acts had recognized Tee-Hit-Ton interest in the land. Justice Reed issued the opinion of the Court, and made a number of telling

62 Stephen Haycox, “Then Fight For It: William Lewis Paul and Alaska Native Land Claims,” in Hamar Foster, Heather Raven, and Jeremy Webber, eds. Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: University of British Columbia Press, 2007). 63 Tee-hit-ton Indians v. United States 348, U.S. 272 (1955). 325

statements regarding Congressional recognition of Tee-Hit-Ton land rights and their respective legal status as compared to American Indians.64

Reed contended that after careful consideration of the language in both Organic Acts, that it had not been the “intention by congress to grant to the Indians any permanent rights in the lands of Alaska,” but rather was intended “merely to retain the status quo until further congressional or judicial action was taken.”65 (emphasis original)

Furthermore, he wrote that this “policy of Congress toward the Alaskan Indian lands was maintained and reflected by its expression in the Joint Resolution of 1947 (the Tongass

Timber Act) under which timber contracts were made,” affirming, implicitly, the objectives of the Tongass Timber Act. As discussed in the previous chapter, the Timber

Act aimed to sustain uncertainty (the status quo) over Alaska Native possessory rights by allowing timber corporations to harvest timber in the Tongass National Forest with a percentage of the profits held in escrow until future court decisions determined to what extend Alaska Natives were entitled to compensation for the taking. This sole purpose of this legislation, then, was to allow for the continued extraction of resources without reckoning with the very rights these officials alleged “may or may not” exist. The Court, then, affirmed the general policy in Alaska as one in which Alaska Native sovereignty and land ownership had been maintained in a state of continuous uncertainty.

Reed then rejected Paul’s argument that the Tee-Hit-Ton “stage of civilization and their concept of ownership of property takes them out of the rule applicable to Indians of the States” and agreed with the Court of Claims decision that there was no evidence that

64 Tee-Hit-Ton 65 Tee-Hit-Ton 326

“the Russian handling of the Indian land problem differed from ours.”66 He continued by asserting that evidence presented to affirm Paul’s argument for “a second type of Indian title” that was compensable under the Fifth Amendment actually worked to “bear out the general proposition that land claims among the Tlingits, and likewise of their smaller group, the Tee-Hit-Tons, was wholly tribal” and that “the petitioners’ use of its lands was like the use of the nomadic tribes of the States Indians.”67 He then quickly followed this with his infamous conclusion “ that “every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that (…) it was not a sale but the conquerors’ will that deprived them of their land.”68

Here, Reed did two things: first, in what has been characterized as “one of the most glaring misrepresentations of fact ever uttered by a Supreme Court justice,” he concluded that Native land ownership—in Alaska and elsewhere—was based solely on congressional recognition, not indigenous ownership vested in inherent sovereignty affirmed, at least in the contiguous states, through the process of treaty making.69 He contended that “the taking by the United States of unrecognized Indian title is not compensable under the Fifth Amendment” because “Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the

United States protected by the Fifth Amendment or any other principle of law.”70 This, to him, established that Alaska Natives occupied a similar legal status to American Indians in which he contended Indian title was “not a property right” but a “right of occupancy” that “may be terminated and such lands fully disposed of by the sovereignty itself without

66 Ibid. 67 Ibid. 68 Ibid. 69 David Wilkins and Tsianina Lomawaima, Uneven Ground 24, 134. See also Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835). 70 Ibid. 327

any legally enforceable obligation to compensate the Indians.”71 While a tremendous blow to Native land and sovereignty across the United States, Reed had perhaps unintentionally recognized the existence of aboriginal title in Alaska—even if he defined that title as essentially no title at all that the U.S. was obliged to recognize.72

Tee-hit-ton, then, perpetuated the very uncertainties that had been so productive in the process of Alaska Native dispossession. By rejecting Paul’s argument for property ownership as vested in the clan and therefore distinct from that recognized by Congress in the contiguous states, the Court appeared to resolve one of the fundamental questions regarding the relationship of Alaska Natives to the U.S. However, by relegating the authority to recognize land ownership through aboriginal title back to Congress, the

Court determined that any indigenous rights that might be gained through recognition of

Alaska Natives on similar legal grounds as American Indian nations were really no rights at all. Rather, Alaska Native land and sovereignty rights were beholden to the whims of

Congress, which had been the case since the 1867 Treaty of Cession. However, before the effects of Tee-Hit-Ton could be discerned with regard to the issues of statehood and

Alaska Native land, the statehood debate took a sharp turn at the national and international level, the implications of which reveal the Cold War hegemonic functions of settler imperial space.

“I say it’s easier to use”: The Settler Imperial Flexibility of Incorporated Territories and the Inversion of U.S. Colonialism

In 1953, before Tee-Hit-Ton had reached the U.S. Supreme Court and H.R. 1921 was still under consideration, the Eighty-third Congress had settled down for yet another set of hearings on a series of bills intended to admit Alaska to the Union. While Alaska

71 Ibid. 72 Haycox, “Then Fight for It” and Metcalfe A Dangerous Idea 38. 328

Native claims were center stage for much of these hearings, so too were issues of national defense in the context of the global Cold War and the global political implications of

Alaska’s territorial status. Prior to the election of Eisenhower, the Truman administration had advocated for immediate admission of Alaska and Hawaii to the Union. With the election of Eisenhower, statehood advocates perhaps sensed a change of heart in terms of

Presidential prioritization of Alaska statehood. In his first State of the Union address on

February 2, 1953, Eisenhower advocated for immediate action on Hawai’i statehood, though he failed to mention Alaska at all.73 Then, in a Press and Radio Conference later that month, the President responded to a question regarding Alaska statehood as having been part of the recent Republican Party platform during the previous election year. He stated that “I believe the Republican Platform was that Alaska’s situation will be studied

(…) To my mind, not yet has the Alaskan case been completely proven.”74

Between the administrations of Truman and Eisenhower, then, and in the context of the deepening Cold War, the utility of Alaska as an incorporated territory rather than a

State had begun to crystallize in new ways and the definitive nature of statehood with the potential legal snare of a new state sovereignty threatened to undermine the flexibility of settler imperial space. In hearings for the numerous bills in the first session of the Eighty- third Congress, James H. Douglas, Undersecretary of the Air Force, offered equivocating testimony that perhaps foreshadowed current Presidential assumptions about statehood, the military, and global Cold War objectives. While the previous administration had contended that statehood for Alaska would strengthen national security and defense in the

Pacific, Douglas’s testimony reveals that this may have no longer been the case. He

73 Naske, 49 at Last!, 181. 74 Eisenhower’s Press and Radio Conference February 25, 1953, File OF147 D Alaska (1), Box 630,White House Central Files (Dwight D. Eisenhower Library, Abilene, Kansas). 329

testified, “over a period of years statehood may provide a sound or more sound political and economic structure, and that this would be of benefit to the Armed Forces. However, the immediate impact from a national-security standpoint would be of no great import

(…) because the military responsibility remains the same whether Alaska is admitted or continues in its present status.” With that statement he also recommended that Congress amend the bill to provide for “concurrent jurisdiction over military property in Alaska,” which was, in fact, also attached to the Hawaii statehood bill (H.R. 3573) that was also pending before Congress, and eventually passed the House.75

While the reservation of Congressional authority over military installations in

Alaska did not seem to bother anyone immediately, many worried what the amendment implied about the Defense Department’s overall position regarding statehood and further prying by the committee appeared to make Douglas uncomfortable. Representative

Wayne Apsinall of Colorado pushed Douglas to answer more clearly the Department’s position, inquiring that “at the present time you do not see any value, and therefore you are neither yes or no—you do not care, or it is all right. Is that right?” to which Douglas replied that that was “exactly what the position of the Department is.”76 Aspinall responded by asking Douglas to elaborate as to what circumstances might come to pass in the next few years to make Alaska more ripe for statehood that were not present now, to which Douglas replied quickly that he hesitated on that subject, and continued that the

Department of Defense essentially had no interest in supporting statehood for Alaska, though if Congress should pass a measure granting it, that it only do so with his

75 Hearings Before the Subcommittee on Territories and Insular Possessions of the Committee on Interior and Insular Affairs on H.R. 20, H.R. 207, H.R. 1746, H.R. 2684, H..R. 2982, and H.R. 1916, 83rd Cong. 1st Sess. April 1953. 76 Ibid. 41 330

amendment attached.77 While the Hawai’i measure passed committee favorably, the

Alaska measures failed to move forward. This prompted the Senate to attempt to join the two bills, but the joint measure likewise failed to emerge from the Interior and Insular

Affairs Committee.78

Nearly simultaneously, the Senate was considering its own version of Alaska statehood, S.50, for which hearings were conducted in Ketchikan, Juneau, Fairbanks, and

Anchorage in August of that year. The hearings swirled around the usual topics of economic feasibility and the question of Indian claims, reservations, and the largely transient military population.79 Bartlett’s two extinguishment bills had perhaps taken the urgency of Alaska Native land claims out of these statehood proposals, however partisan politics—the Republican fear of a Democratic Alaska—perhaps stymied action on the bill, and then the following year in Eisenhower’s State of the Union address, he again urged statehood for Hawai'i and failed to mention Alaska. This prompted the Senate

Interior and Insular Affairs Committee to revise the bill. Much of the revisions focused on allocating more land to the state and the military needs within the territory, and much ink was devoted to the military benefits of Alaska statehood, though one important change in language regarding the standard disclaimers for Native owned lands drew the attention of the Alaska Native Brotherhood. The revised bill had changed the language, which Alaska Natives had supported, from that which prohibited the new state from claiming right or title to

77 Ibid. 41 78 Naske, 49 at Last!, 186. 79 Hearings Before the Committee on Interior and Insular Affairs United States Senate on S. 50 and S. 224 83rd Cong. 1st Sess. August 1953. 331

any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives.

The new bill included the following revisions, protecting property that is owned by or, for a period of at least 3 years immediately prior to the enactment of this act has been in the possession and actually in the use or occupation of any Indian, Eskimo, Aleut (including any Metlakahtlan Indian or Metlakahtlan) or any community of such natives.

The act also stated that in order to “prevent any more vast native reservations from being established, further action is suspended under the vague language of section 2 of the act of May 1, 1936,” the Act extending the IRA to Alaska. The committee suggested, “the new language (…) will lead to eventual settlement of the whole native land question.”80 Before the ANB could respond, the Senate took action to join S.50—the

Alaska statehood measure—to the Hawai’i measure that had recently passed the House.81

Alarmingly, the joint bill also included a clause that would release from escrow the funds accumulating for a Native land settlement under the Tongass Timber Act. The new joint bill, S.49 was presented the following year in the 84th Congress. The ANB, having little time to respond, was represented at hearings the following year by Miles Brandon,

President of the Anchorage Camp, who presented a statement for the NCAI as well as the

ANB’s objections to similar bills that had previously been presented alone (S.50 and H.R.

3575 with the AK bill attached). Brandon testified that the joint bill’s proposals for the language of the disclaimer clause “endangers their land claims” and that the provisions regarding funds for the Tongass National Forest funds “had no rightful or proper place in

80 Senate Committee on Interior and Insular Affairs Committee Report 1028 to accompany S.50 83rd Congress 2nd Session. 81 Hearings before the Committee on Interior and Insular Affairs United States Senate on S.49, S.399 and S.402, 84th Cong. 1st Sess., February 1955. 332

a statehood bill.”82 The Association on American Indian Affairs also testified vehemently that the use of the word “owned” rather than “claimed” was far too narrow in that it failed to cover lands to which Alaska Natives “assert a claim of title” and violated provisions to

“protect Indian rights as in earlier enabling acts.”83 This was not to say that the AAIA believed that Alaska Natives did not own the land they claimed, but rather expressed a concern as to the requirements of proof that the federal government would attempt to implement.

The joint proposals stood little chance because Eisenhower and those in his administration had begun making statements in the previous year and throughout 1955 regarding their opposition to Alaska statehood that reveal the function of incorporated territories within the broader framework of U.S. empire. These statements, and the subsequent statehood proposals reflect the attempt by Eisenhower to maintain the settler imperial flexibility even after new state sovereignties were enacted for both Alaska and

Hawai’i. After the Senate approved joining of the Hawai’i and Alaska statehood measures in March of 1954, Eisenhower’s recently appointed Territorial Governor of

Alaska, Frank Heintzleman and Interior Secretary McKay held a meeting with the

President, after which Heintzleman began advocating for a plan for partition in which only the populated southeastern and south central areas of Alaska would be admitted as a state, with the northwest regions remaining an incorporated territory—under complete federal jurisdiction.84 The region to be excluded was particularly rich in natural resources, leaving many to wonder why a partition plan would work in favor of the statehood cause

82 Ibid. 96 83 Ibid. 99 84 Naske, 49 at Last!, 197. 333

in which economic sustainability was a primary obstacle, and this proposal met with widespread disapproval from advocates of Alaska statehood.

Following the introduction of partition proposals, Eisenhower became more outspoken about his reluctance to admit Alaska all together. Eisenhower was questioned in a press conference to explain his reluctance to admit Hawai’i and not Alaska in July,

1954. A reporter from the Portland Oregonian requested the President to clarify “the

Administration’s position more specifically on Statehood for Alaska,” citing “certain defense considerations there.” The President responded that he was concerned about the vulnerability of Alaska as a strategic location in the current Cold War hostilities, concluding, “these regions are of tremendous importance. And I don’t think I should say more than that.” A reporter from the American Broadcasting Company then interrupted asking, “I don’t quite understand the theory that a territory is necessarily easier to defend than a State. Would you explain that sir?” Eisenhower’s answer is telling, and speaks directly to the way incorporated territories are far more than nascent “states.” He responded with the following: “Well, I would say this: I don’t say it’s easier to defend, I say it’s easier to use, because in one case it is under the absolute control of central government, and in the other case it is not.”85

The President’s comments are particularly striking as to how incorporated territories were situated within the U.S. imperial matrix. Scholars of unincorporated territories, namely Puerto Rico, have articulated that the status of these territories as

“foreign in a domestic sense” was and is a distinct category.86 For example, in his essay

“Deconstructing Colonialism: The “Unincorporated Territory” as a Category of

85 Eisenhower’s Press and Radio Conference July 14, 1954, February 25, 1953, File OF147 D Alaska (1), Box 630,White House Central Files (Dwight D. Eisenhower Library, Abilene, Kansas). 86 “Foreign in a domestic sense” is the infamous phrase from the Insular Case Downes v. Bidwell. 334

Domination,” Efrén Rivera Ramos writes that these categories, “and the meanings assigned to them, derive from a particular vision of power.” He continues:

When applied to the relationship with the newly acquired territories, that vision assumed a concrete form, taking shape in a particular legal and constitutional doctrine. But this operated only as a corollary of a wider discourse that was part of the image that the United States forged of itself as an actor in the international arena. It is not surprising, then, that even today the consequences of that discourse of power extend well beyond the sphere of United States territorial relations.87

I contend that in addition to the implications for unincorporated territories, the doctrine of incorporation that emerged from litigation over the precise meaning of unincorporated status served particular functions for “incorporated” territories as well. In this context,

Eisenhower’s allusion to the function of territories of incorporated status reveals that incorporated territories served a purpose that states could not, and that because of this, there was an imperative to keep them that way. And while the doctrine of incorporation assumed that incorporated territories would ultimately become states at some future date, there was never any stipulation as to a timeframe within which that shift in political status must take place. Thus, not entirely unlike unincorporated territories, incorporated status could be sustained for an indefinite amount of time. And, as the final statehood acts for both Alaska and Hawai’i demonstrate, statehood was achieved with a number of exceptions relating to federal jurisdiction, the exclusion of certain lands deemed useful for specific federal purposes, and the relationship of indigenous Nations with the new states and the federal government.

For these reasons, the bill before the House, H.R. 2535 (identical to the Senate version S.50, and then S.49 joining HI and AK prior to the amendments the senate added

87 Efrén Rivera Ramos, “Deconstructing Colonialism: The “Unincorporated Territory” as a Category of Domination,” Christina Duffy Burnett and Burke Marshall, eds., Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Durham: Duke University Press, 2001). 335

regarding the Tongass funds and three year “ownership” of Native lands required for protection), included a stipulation for military land withdrawals. The proposed amendments would have allowed the President of the United States to establish “by

Executive order or proclamation issued prior to the admission of the State of Alaska into the Union, one or more special national defense withdrawals” that only the President, thereafter, could terminate. These withdrawals were to be established only in northwestern Alaska in an area above the line on the following map:

The proposed line essentially bifurcates the territory, following the Yukon River and then the 65th parallel out to the Bering Sea. It appears as a red line through the middle of the territory.

Within the areas withdrawn, the United States reserved “exclusive jurisdiction” with

“sole legislative, judicial, and executive power” and that such reserved powers “shall remain in effect (…) so long as such tract or parcel remains withdrawn, and the laws of the State of Alaska shall not apply during the period of withdrawal.”88 This amendment, as originally proposed was voted down, and proposals for defense withdrawals remained a part of the statehood debate. Given Eisenhower’s adamant refusal to consider statehood legislation that did not grant these powers, the Alaska Territorial legislature resorted to

88 Congress, House Committee on Interior and Insular Affairs Report on H.R. 2535, 84th Cong. 1st Sess. 336

only contesting the location of the line and attempting to set restrictions on the amount of land the president could ultimately withdraw. The territorial legislature feared the withdrawals were another attempt at partition, though Bartlett assured them that defense withdrawal proposal would not “give the President power to do anything which he cannot now do,” and “language of this kind was absolutely essential if the President were to approve an Alaska statehood bill.” Accordingly, he had proposed amendments to S.49 that would have limited the total area of possible withdrawals to 40% of the area north and west of the proposed line.89 Furthermore, as the proposals were debated throughout

1955, 1956, and 1957, Eisenhower’s Secretary of the Interior, Fred Seaton, stated numerous times that the ability of the President to make military withdrawals would not differ from the authority of “the Federal Government in 25 states, pursuant to either the constitutions or the statutes of those states.”90 This may have been somewhat accurate, though none of these conditions were present in the enabling acts of recent states, suggesting an urgency on the part of the administration in securing these powers prior to the creation of a state sovereignty that could potentially object to or enact serious restrictions on federal activity in the region.

These withdrawals represent one of many exceptions to statehood that lawmakers and Eisenhower’s administration pursued for Alaska in the mid 1950s that demonstrate the degree to which particular interests—namely Eisenhower’s desire for territories that were unencumbered by state sovereignties—sought to keep Alaska out of the Union. It is worth pointing out as well, that in the same period in the mid 1950s, a number of

89 Bartlett to James Nolan, February 19, 1955, Bartlett Correspondence File, Subseries 83 Box 2, RG 313 (Alaska State Archives, Juneau, Alaska). 90 Interior Department Press Release, File Alaska (2), Box 2, Ewald Research Files (Fred Seaton Papers, Dwight D. Eisenhower Library and Museum, Abilene, Kansas). 337

alternative proposals for Alaska’s political status were also considered including an elective governor and commonwealth status, nearly identical to measures conferred on

Puerto Rico just a few years earlier. These proposals incited numerous heated debates among territorial and federal officials about the meaning of incorporated status and within these debates, we can see the ways in which the doctrine of incorporation was meted out in contests over variances in national territoriality in Alaska. As different possibilities were debated, non-Native Alaskans began to consider anything other than full statehood as colonialism, and they began to argue that they themselves were the colonized rather than the colonizers. This inversion of colonialism reveals the complex political geography of U.S. expansion and the contradictory space within which incorporated territories are situated within it.

As early as 1948 and again in 1950, Senator Hugh Butler had written Delegate

Bartlett regarding the possibility of an elective governor for the territory as opposed to statehood. He inquired of Bartlett as to whether or not he would join him in the

“introduction of a bill in the early part of the 82nd Congress providing for the election of a governor in Alaska similar to the bill I introduced and for which I secured passage with reference to Puerto Rico.”91 At the time, Bartlett objected on the grounds that an “elective governor would be a palliative that would not suffice” given the demands of Alaskans for statehood. These alternatives to statehood remained in play throughout the 1950s, revealing the negotiation of national space in which the President and various lawmakers attempted to construct an apparatus that would achieve a multitude of objectives, and the

91 Bartlett to Butler (response and quote from Butler to Bartlett included) December 2, 1950, File 5 Bartlett Correspondence, Box 2 Subseries 83, RG 313, Alaska State Archives. 338

simultaneous shifting status of nearly every U.S. territory—incorporated or not—reveals that more than Alaska was at stake.

Importantly, in this Cold War context, these issues of statehood and its alternatives proved a double-edged sword. As discussed in the previous chapter, the federal government understood quite well the liabilities associated with maintaining colonial possessions. Despite these concerns the Eisenhower administration remained opposed to Alaska statehood because of the limitations the change in political status would place on their ability to execute the Cold War. As late as 1953, the Department of

Defense had concluded that statehood “had no immediate bearing on military considerations.” By 1955 “re-examination of the matter by the Department and review by the Commander in Chief” had led the Department “to the conclusion that military considerations are definitely involved in so fundamental a change in status of the territory of Alaska.”92 To many within the administration, it was “in the interest of national security that Alaska remain a Federal territory.”93 Several members of Congress continued to plea the case for statehood to the administration, and Eisenhower himself sent a number of replies, further revealing the contingency of statehood and the uncertainty surrounding the status of incorporated territories. Responding to these inquiries, the President wrote, “the admission of the Territory of Alaska to statehood (…) has a number of troublesome aspects,” namely that conversion of the Territory to a State cannot but raise difficult questions respecting the relationship of the military to the newly constituted State authority. Neither the nation nor Alaska could afford any impairment of the freedom of movement and of action by our forces in large areas of this critical region. I believe that it would be imprudent to effect

92 Robert Trip Ross Assistant Secretary of Defense to Chairman Engle, March 9, 1955, Bryce Harlow Records, Box 29, Alaska and Hawaii (2) File, Dwight D. Eisenhower Library. 93 Secretary of Defense to Chairman Engle, February 15, 1955, Bryce Harlow Records, Box 29, Statehood Alaska and Hawaii (2) File, Dwight D. Eisenhower Library. 339

so fundamental a readjustment unless a formula can be devised and approved by Congress which will adequately meet these defense needs.94

The “formula” the President refers to here was the very essence of settler imperial flexibility in which a permanent “state of exception” would be mandated as part of any shift in the political status of the territory. Thus, proposals for an elective governor, commonwealth status, or partition, must be interpreted as attempts by various territorial and federal officials at crafting a satisfactory “formula.”

Non-Native residents of Alaska saw things differently and appropriated the Cold

War anti-colonial propaganda in their advocacy for statehood. Here, the President’s opposition to statehood gave rise to conditions in which Eisenhower’s imperial objectives became entangled with the objectives of settler colonizers. Under these conditions, these non-indigenous settler-colonizers began to claim that they were the colonized—relegated to second class citizenship by a “tyrannical government” that refused to allow them to enter the Union on equal footing with the 48 states. Invigorated by American anti- colonial rhetoric in the Cold War, these territorial advocates of statehood organized a constitutional convention under the so-called “Tennessee Plan” in which territorial officials would nominate delegates to form a state constitution without an enabling act from Congress, and demand admission to the Union. When the convention met in

November 1955, former territorial governor Ernest Gruening delivered a keynote address in which this inversion of colonialism is strikingly apparent. He railed against what he argued was the paradox of Alaska’s relationship to the United States and objected that it was unacceptable that a country “born of revolt against colonialism” would have

94 Eisenhower to Representative A.L. Miller, March 31, 1955, Bryce Harlow Records, Box 29, File Statehood—Alaska and Hawaii (1) Dwight D. Eisenhower Library. 340

colonies. “What else is this besides colonialism, crude, stark, undisguised, and unashamed?” he charged.95

Alaska Natives were eerily missing from this indictment of United States colonial policy, save once when Gruening patronizingly alluded to their happy reception of the liberal institutions of capitalism, individualism, citizenship, and equality; “the very qualities that have made America.”96 In this speech, in which Gruening likened Alaskans to residents of the thirteen colonies who suffered under an “oppressive” English colonial regime, we witness an attempted subversion Alaska Native indigeneity and inherent sovereignty through the “indigenization” of the settler.97 What Gruening and these statehood advocates failed to appreciate, however, was that Eisenhower’s proposed withdrawals completely disavowed Alaska Native sovereignties in new and complex ways and raised serious questions about the very nature of the relationship of Alaska

Natives to the federal government in the areas that might, and ultimately were, withdrawn. Thus, when critics of the administration’s stance on statehood threatened that the Soviets would leverage the perception of Alaska (or any part of Alaska) as a colony against them in the Cold War, they were not speaking to the colonization of Alaska

Natives and the nearly 100 years of encroachment on their land and sovereignty. Rather, they were speaking to the “colonization” of white settlers by an imperial authority of which they were part and parcel.

“It is a state and it is not a state”: Native Land and Sovereignty, and the Exceptions of Statehood

95 Ernest Gruening, “Let’s End American Colonialism” Keynote Address, Alaska Constitutional Convention November 1955. 96 Ibid. 97 See Wolfe, “Settler Colonialism and the Elimination of the Native,” Veracini, Settler Colonialism: A Theoretical Overview. 341

The Alaska Constitutional Convention that statehood advocates in the territory organized consisted of 55 delegates from various institutions across the territory, only one of whom was Alaska Native—Frank Peratrovich. Despite these disproportionate numbers, the Convention adopted and in 1956 the territory ratified a state constitution with a disclaimer to Native lands similar to that in S. 49 and H.R. 2535, which the Alaska

Native Brotherhood had previously found satisfactory.98 It read very broadly, and stipulated that the new State and its people do agree and declare that they forever disclaim all right and 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 (hereinafter called natives) or is held by the United States in trust for said natives.99

Vague in some respects, the disclaimer did in fact leave open a wide range of possibilities for Alaska Native land claims and importantly did not foreclose those property rights as vested in tribe, village, or individual.

Importantly, in 1959, the same year Alaska became a state, the U.S. Court of

Claims rendered a decision in the Tlingit and Haida Indians of Alaska v. United States, the lawsuit arising out of the 1935 Tlingit and Haida Jurisdictional Act (discussed in chapter 3). Attorneys for the federal government had argued that Alaska Natives were not

“tribes” in the same sense as Indians of the contiguous states, and as such they lacked the ability to “have owned any ‘tribal or community property’ within the meaning of the jurisdictional act.” Therefore, they concluded that Alaska Natives had no legal right to

98 Metcalfe, A Dangerous Idea, 84. 99 H.R. 7999 the Alaska Statehood Act, 1. Section 4. 342

collect on any land settlement.100 Flying in the face of the Supreme Court decision in Tee- hit-ton, the Court of Claims firmly rejected this argument, writing that in their approval of the Jurisdictional Act, “Congress was fully aware of the fact that the Tlingit and Haida

Indians did not have the sort of tribal organization which the Indians of the United States had. Congress knew that despite this fact, each was a homogenous group of Indians having its own language and customs.”101 As such, the Tlingit and Haida were fully in their rights to seek compensation under clan organizational structures that Paul had argued for in Tee-Hit-Ton. The actual settlement, $16 million, however, was wholly unsatisfactory as it only awarded the Tlingit and Haida the estimated value of the land prior to taking by the U.S. The significance of the case cannot be underestimated, though, because it recognized the existence of aboriginal title in Alaska, and with the broad disclaimer clause in the Statehood Act, Alaska Natives held open a number of doors through which they would move forward with land claims in the coming decade.

While Alaska Natives secured a favorable disclaimer in statehood legislation, the bill that would eventually be signed into law, H.R. 7999, admitting Alaska to the Union contained the clause for military withdrawals. As this version of statehood advanced through Congress, the debates became increasingly intense regarding the meaning of statehood and incorporated territories. If we examine the debate over this clause—so dear to Eisenhower in the global Cold War—along with the statehood legislation for Hawai`i that left the small atoll of Palmyra the only incorporated territory of the United States, the apparatus of settler imperialism becomes clear. In June of 1958, Congress struggled with

100Tlingit and Haida Indians of Alaska v. United States---Interestingly, this is in a sense the argument that Paul put forth in Tee-hit-ton, which the Supreme Court had rejected in its conclusion that Alaska Natives were no different than their American Indian counterparts in terms of tribal property ownership. 101 Ibid. 343

two elements of Alaska statehood that were both key to settler imperialism. First, was the control over the fisheries, and second the case of these military withdrawals. As discussed in chapter 4 and earlier in this chapter, the fishery industry had been a primary beneficiary of settler imperialism as the nonrecognition of Alaska Native land and fishing rights on account of their distinctions from American Indians and continued federal rather than territorial control over the fisheries had allowed commercial operations to extract fish resources with near impunity. In the latest versions of statehood legislation, these interests had succeeded in inserting a clause by which even after statehood, the transfer of the fisheries to the State of Alaska would be delayed until “the first day of the first calendar year following the expiration of ninety legislative days after the Secretary of the

Interior certifies to Congress that the Alaska State Legislature has made adequate provisions for the administration, management, and conservation of said resources in the broad national interest.”102 In so doing, they succeeded in maintaining for a time, the conditions under which they appropriated Native land and resources for generations.

Perhaps a more significant exception to statehood was the disposition of the

Pribilof Island fur seal and otter fisheries that were at the center of the controversy surrounding Aleut internment during WWII, the nature of Alaska Native citizenship, and the politics of Native labor, land, resources, and U.S. colonialism. The final statehood act, signed into law, included a clause that withheld from all transfers of federal lands to the new state, control of the fur seal operations of the Pribilof Islands. According to the statehood act, the Secretary of the Interior, “at the close of each fiscal year, shall pay to the State of Alaska 70 per centum of the net proceeds (…) derived during such fiscal year from all sales of sealskins or sea-otter skins” after deductions for the costs “of handling

102 Alaska Statehood Act, H.R. 7999, Public Law 85-508 Section 6(e) 344

and dressing the skins, the costs of making sales, and all expenses incurred in the administration of the Pribilof Islands.”103 With this exception, the federal government sought to, and succeeded in, maintaining federal control over one of Alaska’s most valuable resources and the Native labor necessary to harvest it, thereby suspending within a web of exceptions, colonial relationships regarding indigeneity and the institutions of

Native citizenship, sovereignty, and land. Within this provision, we can see the ability of lawmakers to cleave away from the process of statehood both indigenous sovereignty and the sovereignty of the new state. These two issues speak directly to the entanglement of imperial and settler colonial objectives in Alaska, and how Alaska Native assertions of sovereignty and land rights disrupt both. With Native lobbying, one of the first actions of the new State Legislature was to outlaw the use of the much hated fish traps, though federal control over the fur seal and otter operations on the Pribilofs would survive even through the 1971 Alaska Native Claims Settlement Act despite conveyance of most of the land on both St. George and St. Paul to the new Aleut Corporation created from that legislation.104 The exception of the Pribilof fur sealing, then, stood as a major contradiction in both the relationship of states to the federal government, and most importantly the relationship of Alaska Natives to the federal government.

The exception that seemed paramount to the senate during debates over H.R.

7999, however, was the President’s military withdrawals. The current bill contained similar provisions to H.R. 2535 and incurred strong objections to those who felt that

“with the withdrawal provisions in the bill, the State of Alaska could not come into the

103 Ibid., Section 6(e) 104 National Oceanic and Atmospheric Administration, Pribilof Islands: A Historical Perspective, http://docs.lib.noaa.gov/noaa_documents/NOS/ORR/TM_NOS_ORR/TM_NOS- ORR_17/HTML/Pribilof_html/Pages/history_Aleut_mgmt.htm, accessed January 3, 2016. 345

Union on a basis of equality with other States and that therefore the bill flies in the face of the Constitution.”105 Many agreed, and Senator Robertson of Virginia argued that the provisions provided for the national interest only in that “the Federal Government could go back into Alaska and withdraw anything that was absolutely needed for the national defense” to which Senator Jackson of Washington wryly replied “The Lord giveth and the Lord taketh away.” This ambiguous characterization of the legal relationships taking shape in the statehood bill prompted Senator Eastland from Mississippi to exclaim “That is exactly it. It is a State and it is not a State. Membership in the Union would not be as firm, even, as the membership of a college student in a college fraternity.”106 (emphasis added) While Eastland’s concerns were constitutional, his statement gets to the very core of settler imperialism and not only the ability but the absolute necessity of maintaining specific federal powers in the transition from incorporated territory to state, thereby suspending the new State in a perpetual state of ambiguity, uncertainty, and tension by blurring the line where authority of the federal government ends and where federalism begins. Easton continued a few moments later, complaining, “We are talking about a

State which cannot even enforce sovereignty in half of its area. It is neither in the Union nor out of the Union.”107 To Eisenhower, perhaps, that was precisely the point. Either way, this exception to Alaska statehood demonstrates the contingency of the constitution even when statehood is ultimately “achieved.” Imagined as a final, permanent, irreducible legal status of “incorporated” territories, statehood represented to these senators the ultimate act of nation-making, and to admit a state with an exception ruptured their understandings of that process and the very nature of the doctrine of incorporation.

105 Senator Eastland, Congressional Record, Senate, 1958, 12017. 106 Ibid. 12017 107 Ibid. 12018. 346

In this context, the case of Hawai’i statehood and the long history of Kanaka

Maoli resistance to U.S. colonialism, is particularly telling. While much of this is beyond the scope of this dissertation, it is perhaps worth pointing out that the last two states in the

Union came into the Union with similar exceptions in terms of indigenous-U.S. relations and territoriality. Like Alaska Natives, Kanaka Maoli have a historically distinct relationship with the U.S. federal government characterized by a long-standing independence movement stemming from the 1893 illegal overthrow of the Hawaiian

Monarchy. As scholars Noenoe Silva and J. Kēhaulani Kauanui have documented,

Kanaka Maoli have continuously resisted United States assertions of sovereignty including contemporary attempts to bring Native Hawaiians under federal “protections” as federally recognized tribes in the same legal category as American Indians.108 Pitched as an attempt to protect state and federal programs for Native Hawaiians, Hawaiian activists have resisted the bill as an attempt to abrogate their sovereignty, which “was not lost via conquest, cession, or adjudication” in either the 1898 annexation of 1959 statehood. Therefore, “those rights to self-determination are still in place under international law.”109

This draws into sharp focus the politics of recognition and the ways in which these relationships took shape in the incorporated territories of Alaska and Hawai’i.

Native Hawaiians were only mentioned once in the Hawai`i Admission Act, when it stated that “lands granted to the State of Hawaii (…) shall be held by said State as a

108 Kauanui writes that U.S senator Daniel Akaka proposed the legislation, now called the Native Hawaiian Government Reorganization Act of 2009, in response to the U.S. Supreme Court ruling in Rice v. Cayetano in which the court ruled that “Native Hawaiian—only voting in trustee elections for the state’s Office of Hawaiian Affairs to be unconstitutional.” The ruling opened the doors for a number of assaults on Native Hawaiian state and federal programs. 109 J. Kēhaulani Kauanui, “Native Hawaiian Decolonization and the Politics of Gender,” American Quearterly, 60, No. 2 (Jun., 2008, 281-287. 347

public trust for the support of the public schools and other public educational institutions, or for the betterment of the conditions of the native Hawaiians as defined in the Hawaiian

Homes Commission Act, 1920.”110 The Homes Commission Act allotted roughly

200,000 acres of land through Congress “to be leased for residential, pastoral, and agricultural purposes by eligible ‘native Hawaiians’” defined in the act as a “descendant with at least one-half blood quantum of individuals inhabiting the Hawaiian Islands prior to 1778.”111 In 1959, the administration of the HHC was transferred from Congress to the new State of Hawai`i as a condition of admission to the Union, “a forcible inclusion that is currently contested by Hawaiian sovereignty activists who challenge the very legitimacy of statehood.”112 In the post-statehood years, the fraught nature of blood quantum requirements in the contest over land, sovereignty, and the allocation of trust funds in the statehood act intensified the “rapidly growing Hawaiian sovereignty movement,” and in 1993 an Apology Resolution in which the federal government recognized and acknowledged U.S. encroachment on land and sovereignty, the betrayal of the 1893 overthrow, and the legacy of colonialism stemming from it, admitting that

“the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through the monarchy or through a plebiscite or referendum.”113 The Akaka bill, then, by conferring federal recognition on Native Hawaiians in a manner similar to that of

America Indians is perceived by many as an attempt to undermine Hawaiian sovereignty as recognized in international law. The resistance of Hawaiians to the decades of

110 Public Law 86-3, An Act for the Admission of Hawaii to the Union. 111 J. Kēhaulani Kauanui, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity, (Durham: Duke University Press, 2008), 2. 112 Ibid. 3. 113 Text from the Apology Resolution as quoted in Kauanui, Hawaiian Blood, 31. 348

colonialism and forced inclusion within the legal frameworks of U.S. nationhood, namely federal Indian law, represents the ruptures that incorporated territories cause within these very frameworks. In the context of Alaska, these distinctions in indigenous-U.S. relations reveal a tension and irreconcilability within the project of U.S. empire itself.

In addition to the distinctions in indigenous—U.S. relations, the Hawaiian

Statehood Act made specific exclusions as to the territory that was to constitute the new state and in the process left little Palmyra standing as the lone “incorporated” territory of the United States. The statehood act specifically stated that

The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act, except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial waters.114

The act also clarified that “said State shall not be deemed to include the Midway Islands,

Johnston Island, Sand Island, or Kingman Reef, thus maintaining a smattering of unincorporated islands and one incorporated territory in the Pacific.115 Palmyra, “claimed as a guano island, abandoned, claimed by Hawai’i, annexed by the United States along with Hawai’i, included in the statute “incorporating Hawai’i into the United States, excluded when Hawai’i became a state” Duffy Burnett writes, explains the

“incorporated” status of the uninhabited island. But what this process further reveals, she contends, is that “Palmyra ended up as it did, constitutionally speaking, as the result of a wobble in the elaborate process of combined inclusion and exclusion, expansion and retraction, projection and limitation, intended for territories at the margins of the nation.”

114 Hawaii Statehood Act. 115 Duffy Burnett, “The Edges of Empire and the Limits of Sovereignty.” 349

She concludes, “in that wobble, as in the broader case of the guano islands, we catch a glimpse of that elaborate process in the making.”116

Alaska, though profoundly different than Hawai’i and Palmyra, also reveals that

“elaborate process.” Alternately conceived of as inside or outside of what was considered

“national territory,” along with the crooked path to statehood and the variety of propositions and proposals as to the way in which admission would be construed, Alaska as a geopolitical space exposed the problems inherent in the doctrine of incorporation and the assumptions that those territories so designated represented. This elaborate process, as it played out in Alaska in the nineteenth and twentieth centuries, the legacy of which persists to this day, also demonstrates the ways in which Alaska Natives harnessed the tensions and contradictions of the various policies that were designed to reconcile Alaska as one or the other in various historical moments. In doing so they carved out powerful spaces from which to continue to assert their sovereignty, citizenship, and belonging as indigenous people and nations. From Gertrude in Spenard and her sister in Kotzebue, to

William Paul Sr. arguing before the Supreme Court and Frank Peratrovich at the Alaska

Constitutional Convention, Alaska Natives challenged those who sought to undermine their inherent sovereignty and land ownership in the process of converting Alaska from a territory into a state. Given the broad implications of such a transformation, Alaska

Natives were at the center of tensions over sovereignty, U.S. national territoriality, citizenship, and belonging. They used this position, and the contingent and unstable nature of the institution of statehood, in fending off direct attempts to terminate—both overtly and through persistence nonrecognition—their sovereign status, rendering statehood as inc

116 Ibid. 350

Conclusion: William Iggiagruk Hensley and Settler Imperialism in the Statehood Era Statehood did not resolve the longstanding settler imperial tensions that characterized the legal landscape in Alaska. Rather, the territory’s transition from

“incorporated” status to the 49th state signaled a new era in which federal and new state officials, white settlers, corporate interests, and lawmakers continued to refuse Alaska

Native nationhood, sovereignty, and land on the basis of the legal ambiguities they and their predecessors had constructed throughout the preceding 92 years. The statehood bill itself contained the very mechanisms by which to sustain these tensions when it prevented “the state and its people” from claiming “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,” leaving “all lands or other property…which may belong to said Natives shall be and remain under the absolute jurisdiction and control” of Congress.117 Congress then granted Alaska’s state government permission to select from what it referred to as the “public domain” 103 million acres for the economic development of the new state. These land selections represented an intensification of the processes by which these officials and their corporate and congressional counterparts sought to dispossess Alaska Natives by further avoiding a reckoning with Native sovereignty and ownership across the new state. The vast oil reserves under Alaska’s

North Slope accelerated these processes, drawing them to a crisis in the decade after statehood.

Alaska Natives vehemently protested this urgent threat to their land, and as yet another generation of activists emerged, they too recognized the ways in which Congress and territorial and federal officials had maintained ambiguity surrounding their legal

117 Alaska Statehood Act, Pub. L. 85-508, 72 Stat. 339. 351

relationship to the United States. In his foundational 1966 paper, “What Rights to Land

Have the Alaska Natives?: The Primary Question,” Iñupiat activist William Iggiagruk

Hensley reflected on what he referred to as “a century of governmental indecision.”118 He contended that the controversy over Native land in Alaska had “remained dormant

(except for sporadic outbursts) since Alaska was purchased from Russia in 1867” after which “the problem has been skirted by Congress, alternately grappled with by the

Department of [the] Interior, then dropped to allow the furor to settle,” while “the courts have ruled time and again—but never with finality [or] clarity.”119 Hensley’s frustration, like that of William Paul Sr., is palpable. What he is describing is the very function of settler imperialism and the ways in which the federal government had sustained indecision and uncertainty around Alaska Native land and sovereignty for nearly a century. This dissertation has shown, though, that rather than lying dormant, these circumstances were actively cultivated through legal gymnastics aimed at avoiding the kind of “finality [or] clarity” that Hensley contends numerous branches of government failed to achieve.

Hensley also recognized the ways the Treaty of Cession and legal constructions of citizenship were at play in this process. He argued that because of the vague language in the Treaty, “from the beginning of American occupancy of Alaska, the status of the

Natives in regard to land was left in limbo.” The lack of treaties language regarding citizenship in the Treaty of Cession with the Russians thus led to the development of two positions regarding the “primary question” of Native land ownership: “one hold[s] that the Alaska aborigine is simply a citizen of the United States and of Alaska with no more

118 William Iggiagruk Hensley, “What Rights to Land Have the Alaska Natives?: The Primary Question,” May, 1966, http://www.alaskool.org/projects/ancsa/WLH/WLH66_2.htm, accessed 10/12/2017. 119 Ibid. 352

rights than any other citizens—therefore has no more right to land than Alaskan settlers arriving later.” The opposing position rested on Native land ownership through

“aboriginal title to land and its products which cannot be deprived of them without their consent.”120 Like Paul Sr., Hensley and his contemporaries perceived that embedded in these debates were the workings and manifestations of settler imperialism, specifically the ways that the federal government had couched Alaska Native indigenous rights in discourses of equal citizenship in the territory from the beginning of U.S. occupation, and how that had sustained uncertainty, allowed courts to avoid “finality,” and had ultimately legitimized dispossession. In framing the debate this way, Hensley articulated how the federal government had set Alaska Native legal status apart from Indian nations in the contiguous states and the ways that federal Indian law had coupled Native sovereignty and collective land ownership within legal concepts of domestic dependency and

“wardship”—the antithesis of citizenship in U.S. law.

As Hensley continued describing the various laws that had been applied to

Alaska—The Treaty of Cession, The 1884 Organic Act, the 1900 Organic Act, etc.—he also argued that the Government was “still dealing with the Native on an individual basis and was not allowing for the tribal nature of various groups [and] their common conceptions of land use” to factor into policy in Alaska. Again, like Paul Sr. and countless other Alaska Native activists, Hensley recognized how the federal government used law to distinguish between Alaska Native tribal political organization and that which the government had recognized in the contiguous states by insisting that Alaska Natives had always been dealt with as citizens. However, Hensley aptly pointed out that despite these claims, the federal government had, perhaps carelessly or inadvertently, referred to

120 Ibid. 353

Alaska Natives as “tribes” in nearly all the applicable legislation even when lawmakers argued that they had never been recognized as such.121

This dissertation has attempted to demonstrate how, over the 92 years from purchase to statehood, these maneuvers regarding the relationship of Alaska Natives to the federal government and the denial of their sovereignty and ownership of the land constituted a distinct legal formation in the broader structure of U.S. empire. Most importantly, this dissertation has demonstrated how Alaska Natives across time and across the territory saw these legal discourses at work, and leveraged the tensions they created in forging their own relationship with the federal government that more closely aligned with their livelihoods, their social, political, and economic structures, their expressions of sovereignty, their rights as citizens, and their networks of relations. From

Tlingit and Haida in southeast Alaska to Iñupiat and Yup’ik reindeer herders in the northwest, Aleut sealers on the Pribilof Islands, and Native lawyers, organizers, activists, and territorial legislators across the state navigated the violent processes of empire, continuously locating and utilizing empire’s tensions, contradictions, and contingencies in asserting their sovereignty, protecting their homelands, fighting for their rights to U.S. citizenship and participation in the life of the territory, state, and nation as indigenous owners of Alaska. Their efforts reveal a long legal tradition in which they achieved passage of legislation at both the territorial and federal level and sought recognition in the courts in ways that guaranteed their ongoing negotiation campaigns for justice within settler colonial and imperial spaces. After statehood, many in Hensley’s generation fought for the passage of the 1971 Alaska Native Claims Settlement Act (ANCSA). At the time, it was the largest land claims settlement in U.S. history, and its structuring of

121 Ibid. 354

Alaska Native nations into regional and village corporations—a situation fundamentally different than that of any legal relationship with an indigenous tribe in what is now the

United States—testifies to this long history of legal ambiguity. While ANCSA was and continues to be controversial and debated in Alaska Native communities, I contend that it represents yet another way that Alaska Natives engaged with and continuously negotiated their relationship with U.S. settler imperialism.

The negotiation of settler imperial legalities in Alaska regarding Alaska Native citizenship, sovereignty, and land, speaks to important shifts in the U.S. settler colonial nation-state. As the first non-contiguous territory, Alaska also represented the first step in larger negotiations of territoriality and national boundaries; debates over the relationship of Alaska to the nation proper at times set in motion, often became embroiled in, or lurked in the background of crucial debates regarding the national identity and the legal constructions of citizenship and nation in the twentieth century. Perhaps most importantly, Alaska demonstrated—and continues to demonstrate—the role of and possibilities for incorporated territories in the larger structure of U.S. empire building.

Simultaneously cast as “The Last Frontier” of the American west and the first overseas colonial possession, Alaska was a flexible legal space and territorial and federal officials, corporate interests, and lawmakers alike situated the territory according to their particular objectives at particular moments in time. They created distinctions between Alaska and the contiguous states and territories when it suited them—most profoundly in those they created between Alaska Natives and American Indians—but also in negotiating international policy, domestic policy, and nineteenth century imperial ambitions and twentieth century projections of U.S. hegemony. So too did they draw Alaska into the

355

sphere of the nation proper when necessary, and often times these seemingly contradictory framings occurred in the same historical moment. Perhaps most revealing, or awkward at least, was the attempt to resettle European refugees during WWII on the condition that they remained in the territory for five years before applying for full citizenship. Barred from entering the United States proper, potential immigrant refugees would occupy a legal state of quasi-citizenship and reside in a territory that many considered—and argued in support of refugee resettlement—was not part of the United

States proper. When this plan failed, these same lawmakers sought to encourage migration to Alaska by U.S. citizens from within the United States, publishing booster material claiming that Alaska “was as American as baked beans, hominy grits, and apple pie,” and was “part of the United States, like Wyoming or Alabama.” Within the span of four years, Alaska had been located both within and outside the nation.

It was this flexibility—and its usefulness in facilitating state objectives—that federal officials feared losing, therefore accounting for Alaska’s remarkably long tenure as a territory. This flexibility was key, not only in terms of the role it played in denying

Alaska Native sovereignty, but militarily as well. Territories—both “incorporated” and non as we have seen—were and continue to be fundamental to U.S. hegemony and strategic objectives. As places where citizenship and the Constitution are murky at best and willfully abrogated at worst, those spaces included within the constellation of U.S. territories functioned—and function—as an important boundary or legal no man’s land in the larger scheme of U.S. empire formation and management. Interestingly, statehood did not fully reconcile this quagmire either, as the tiny little atoll of Palmyra in the Pacific so starkly reminds us. It reminds us too, that this formation is still in flux.

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Tracing post-statehood settler imperialism in Alaska will be fundamental to understanding these ongoing processes, especially in terms of situating these events within the ongoing settler colonial project in the contiguous U.S., Kanaka Maoli struggles for sovereignty, and the relationship between Alaska Native ANCSA corporations and the federal government. For the latter, the rise of multinational corporations in the shaping of domestic and international policy in the last fifty years has become increasingly critical. These developments have deep roots, as we can see in nineteenth century Alaska, and this dissertation only begins to excavate them. I suspect that the road to ANCSA is equally characterized by settler imperial tensions, ambiguities, and indigenous negotiation of these important spaces as corporate and federal interests shifted to largely focus on oil and minerals. While the Alyeska Pipeline has perhaps become naturalized within the landscape of the interior (to some) and Native corporations and their subsidiaries like Bristol Bay Native Corporation (BBNC) and Kakivik engage alongside BP and Shell in global oil exploration, extraction, and asset management markets, BBNC’s fight against Pebble Mine and the possible denigration of the world’s largest sockeye salmon fishery, reminds us of these deep and ongoing entanglements within which Alaska Natives have carved out—and continue to carve out—important political, social, and economic spaces. In this deep history, we can see Native sovereignty at work at the edges of empire.

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