Flexibility in the Federal System? Institutional Innovation and Indigenous Nations’ Self-Determination in the US and Canadian Far North

Adrienne M. Davidson

A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Department of Political Science University of Toronto

Flexibility in the Federal System? Institutional Innovation and Indigenous Nations’ Self Determination in the US and Canadian Far North

Adrienne M. Davidson Doctor of Philosophy Department of Political Science University of Toronto 2018 Abstract Since the early 1970s, Indigenous nations in northern Canada and the United States have secured a heightened level of governing autonomy through the creation of new institutions of self- and shared-rule. While much attention has been devoted to the political factors that allowed for development of these institutions, and their operation within the federal governance framework, this thesis argues that these new institutions have important political implications that have, as yet, been largely unexplored. The settlement of modern land claim agreements, beginning in the 1970s, was a response by the United States and Canadian federal governments to Indigenous demands for self-determination. The decision to settle modern land claim agreements marked a move away from the dominant policy paradigm of assimilation, and into a new paradigm that recognized Indigenous goals for economic self-determination, and which is increasingly responsive to Indigenous demands for political self-determination through self- government. This ideational shift enabled the development of new sites of Indigenous authority within the federal political system. By building a comparative analysis of the political dynamics across four cases—the Northwest Arctic and North Slope regions in Alaska, and the Inuvialuit and Gwich’in regions in the Northwest Territories—this thesis argues that early decisions by the state have had significant, and reinforcing, effects on the development of the institutional spaces for Indigenous minority nations. How these institutions were designed and implemented has had important implications for the degree to which they reinforce or reconstitute conceptions of national or cultural identity. It also has important implications for the degree to which these new institutions are successful at reducing conflicts between the minority nation and the state. By developing a novel framework of minority national conflict, I am able to illustrate how these decisions influence contemporary political dynamics.

Acknowledgments

I would not have made it to this point without the dedicated support of so many people in my life. My supervisor, Grace Skogstad, has been a consistent champion. She has steered me in the right direction, provided thoughtful guidance, and given me the space to grow intellectually and explore my ideas fully. She is an incredible scholar and mentor, and I can only hope to emulate her in my own career. I would not have been able to make it over the finish line but for the support of my committee members: Graham White, whose penchant for exactitude and attention to detail pushed me to be a better researcher and writer; and Robert Schertzer, who challenged me to stand my ground and position myself intellectually and strategically. I am also so grateful to the members of my extended committee. Linda White has been an incredible mentor and teacher, and I have been so fortunate to learn from her in our work together. Martin Papillon eagerly took on the role of external, applied a keen eye, and has given me much to think on and engage with as I take this work into the next phase. I am so fortunate to have found such a rich and supportive scholarly environment at the University of Toronto. In the department of Political Science, professors Christopher Cochrane, Peter Loewen, Robert Vipond, Erin Tolley and Jonathan Craft have all been sounding boards at one time or another. In the School of Public Policy and Governance, professors Mark Stabile, Michal Perlman, Carolyn Tuohy, Mel Cappe and Ian Clark have provided guidance and mentorship over the years. I have benefitted from many other friends and colleagues in the Department of Political Science including: Gabriel Arsenault, Heather Millar, Matt Lesch, Carmen Ho, Andrew McDougall, Jerald Sabin, Emily Scott, Maxime Héroux-Legault, Gabriel Eidelman, Carey Doberstein, Paul Thomas, Erica Rayment, Meghan Snider, Busra Hacioglu, Milena Pandy, and Sophie Borwein. I also want to acknowledge and thank the wider community of scholars I have had the opportunity to work with over the years and who have shaped my growth, including: Christopher Alcantara at Western University; Gary Wilson at the University of Northern British Columbia; Amanda Winegardner at McGill University; Emma Hodgson at Simon Fraser University; Mara Kimmel at Alaska Pacific University; Lee Husky at the University of Alaska Anchorage; Christopher Sands at Johns Hopkins School of Advanced International Studies; Sarah Jordaan at

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Johns Hopkins School of Advanced International Studies; and Leah Sarson at Dartmouth College. My research would not have been possible without support from the Department of Political Science at the University of Toronto, the School of Graduate Studies at the University of Toronto, the Social Sciences and Humanities Research Council (SSHRC), Fulbright Canada, and the Government of Canada Northern Scientific Training Program. I would like to thank all my interviewees for giving me their time and their insights, as well as the archivists and librarians at the Tuzzy Consortium Library in Barrow, Alaska; the University of Alaska Anchorage Consortium Library; and the Prince of Wales Research Center in Yellowknife, NWT for helping guide me through the research process. To my dear friends, Vass Bednar, Jane Hilderman, and Jessica Jewell – you have seen me through the best and worst parts of this process. You were always willing to share a laugh and divert my attention. To my family – my parents, John and Lydia: you instilled in me a love of learning that has carried me through; my siblings Jenna and Graeme: you have supported me always; and in particular, my sister Lauren and her wonderful family – Wayland, Hermione, Mia, and Imogen – you have enriched my life in ways I cannot begin to describe, and I appreciate the fact that none of you, ever, asked me what my dissertation was about. And a special thank you to my aunt Lorna Jean, who pushed me to apply to the program in the first place, and who has been a source of support and guidance throughout my graduate education. But at the end of the day, none of this would have been possible without my partner in life, Jordan Katz. Not only has he supported me in every way from the very start, he is a constant source of joy in my life. He is an amazing father to our wonderful daughter, Maren, and I could not imagine this journey without him. And to my darling puffin, Maren: thank you for being a good sleeper those first three months of your life. I quite literally would not have finished but for your sleepy little head, and I am so excited to watch you grow. I love you both so much.

Table of Contents

Contents

Acknowledgments ...... iii Table of Contents ...... v List of Tables ...... viii List of Figures ...... ix List of Appendices ...... x Chapter 1 – Introduction ...... 1

1.1 Introduction ...... 1 1.2 Federalism, Indigenous Minority Nations, and Conflict Potential – The Puzzle ...... 4 1.3 Research Design...... 8 1.4 Case Selection and Methodology ...... 12 1.5 Chapter Description ...... 19 Chapter 2 – The Indigenous-State Relationship in Canada and the United States: Federalization in Theory and Practice ...... 21

2.1 The Indigenous-State Relationship in Canada and the United States ...... 21 2.2 Indigenous Nations and the Multinational Federation ...... 23 2.2.1 The Institutional Value of Federalism in a Multinational State...... 28 2.2.2 Federalism as Political Development ...... 35 2.3 The Limitations of the Multinational Framework ...... 39 2.3.1 Shifting Compacts: Jurisdictional Clarity and Intergovernmental Relations ...... 51 2.3.2 Institutional and Political Asymmetry in the Federal System ...... 58 2.4 Conclusion ...... 66 Chapter 3 – Institutional Innovation through Federalization ...... 67

3.1 Policy Innovation in the Indigenous-State Relationship ...... 67 3.2 Modern Land Claim Agreements: The First Step Forward in a New Policy Paradigm ...... 69 3.3 Undermining the Entrenched Paradigm ...... 77 3.3.1 The Accumulation of Policy Anomalies in Alaska (United States) ...... 78 3.3.2 The Accumulation of Policy Anomalies in the Northern Territories (Canada) ...... 86 3.4 Policy Transition ...... 95 3.4.1 A First Attempt at Innovation in Canada (1959-1969) ...... 101 3.4.2 A Constrained Period of Policy Change in Alaska (1967-1971) ...... 110 3.5 Institutionalization of a New Policy Paradigm ...... 119 3.6 Conclusion ...... 122 Chapter 4 – Explaining Indigenous Institutional Outcomes in the Northwest Territories and Alaska ..... 124

4.1 Policy Change and Institutional Evolution in the United States and Canada ...... 124 4.2 Shopping Around for a New Policy Paradigm: The Political Reverberations of ANCSA ..... 129 4.2 Enlarging the Policy Paradigm: Policy Flexibility and Institutional Outcomes in Canada .... 138 4.3 Conclusion ...... 147

Chapter 5 – The Contemporary Governing Landscape – Controlling for Variation...... 150

5.1 The Comparative Framework: Controlling from Cross-National Variation in Institutional Outcomes ...... 150 5.2 Identity, Institutional Legitimacy, and Models of Dissent ...... 151 5.3 The Implications of Institutional Design – The Northwest Territories ...... 156 5.3.1 Fragmentation of the National/Cultural Group ...... 156 5.3.2 The Development of Incongruent Institutions ...... 160 5.3.3 The Institutional Potential for Conflict ...... 163 5.4 The Implications of Institutional Design: Alaska ...... 166 5.4.1 The Fragmentation of the National/Cultural Group ...... 168 5.4.2 The Development of Incongruent Institutions ...... 172 5.4.3 The Institutional Potential for Conflict ...... 174 5.5 A Framework for Institutional Design and Contestation ...... 179 5.6 Controlling for Cross-National Variation: Case Selection in Alaska and the NWT ...... 182 5.6.1 Institutional Identity in Alaska: Processes of “Building In” ...... 188 5.6.2 Institutional Identity in the Northwest Territories: The Inuvialuit Region ...... 198 5.7 Conclusion ...... 204 Chapter 6 – Beaufort Offshore Drilling and the Mackenzie Gas Project – Exploring the Political Dynamics of Resource Development in the NWT ...... 207

6.1 The Changing Political Dynamics of Resource Development in the NWT...... 207 6.2 Primary Case: Offshore Drilling in the Beaufort Sea (2008-2015) ...... 210 6.2.1 Media Analysis – The Changing Nature of the Debate ...... 214 6.2.2 Dynamics of Dissent in the Beaufort Offshore ...... 217 6.3 Common Case: The Mackenzie Gas Project (2000•2010) ...... 223 6.3.1 Media Analysis – The Changing Nature of the Debate ...... 229 6.3.2 Dynamics of Dissent in the Mackenzie Valley and Beaufort Delta ...... 232 6.4 Discussion ...... 236 6.4.1 Shared-Rule Institutions as Sites of Legitimacy ...... 237 6.4.2 The Implications of “Uneven” Ground – Addressing Regional Inequalities ...... 239 6.4.3 Accounting for Differences in Within-Group Dynamics ...... 242 6.5 Conclusion ...... 245 Chapter 7 – The Red Dog Mine and Offshore Drilling in the Beaufort and Chukchi Seas – Exploring the Political Dynamics of Resource Politics in Alaska (2000-2014) ...... 247

7.1 The Changing Political Dynamics of Resource Development in Alaska...... 247 7.2 Primary Case: The Red Dog Mine (2000-2010) ...... 251 7.2.1 Media Analysis – The Changing Nature of the Debate ...... 259 7.2.2 Dynamics of Dissent in the NANA Region ...... 263 7.2 Common Case: Beaufort & Chukchi Offshore Drilling (2007-2014)...... 268 7.3.1 Media Analysis – The Changing Nature of the Debate ...... 276 7.3.2 Dynamics of Dissent in the North Slope Region ...... 277 7.4 Discussion ...... 285 7.4.1 Alaska Natives and the Environmental Movement – A Complex Relationship...... 286 7.4.2 Political Dynamics in the Absence of Shared-Ruled Institutions ...... 289 7.4.3 Institutional Fragmentation: Implications for Within-Group Dissent ...... 292 7.5 Conclusion ...... 293

Chapter 8 – Conclusion ...... 296

8.1 The Argument ...... 296 8.2 Limitations of the Inquiry ...... 302 8.3 Implications of the Research ...... 303 Bibliography ...... 310

Appendices ...... 328

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List of Tables

2.1 Ideational Phases and Federal Policy 45 2.2 Asymmetrical Outcomes in Settled Claims 64 5.1 Regional Population Diversity by ANCSA Region (1971) 171 6.1 Dehcho First Nations – Arguments Against the Mackenzie Gas Project 234 7.1 Kivalina Citizens & Institutions – Arguments Against the Red Dog Mine 266 7.2 Indigenous Citizens & Institutions – Arguments Against Offshore Drilling 279

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List of Figures

1.1 Two-Step Research Design 9 5.1 Potential Sites of Conflict 182 5.2 Case Selection Along Two Variables – Institutional Identity and Fragmentation 186 6.1 Proportion of Debate For/Against Drilling, by Actor 217 6.2 Sites of Dissent – Minority Nations (Within and Between Nations) 218 6.3 Sites of Dissent – Inuvialuit vs. the Majority Nation 223 6.4 Proportion of Debate For/Against the Mackenzie Gas Project 231 6.5 Proportion of Debate For/Against Development, by Nation 232 6.6 Sites of Dissent – Minority Nation v. Minority Nation 233 6.7 Sites of Dissent – Minority Nation v. The State (/Majority Nation) 237 7.1 Proportion of Debate For/Against the Red Dog Mine Expansion 261 7.2 Proportion of Debate For/Against Development, NANA Region 263 7.3 Sites of Dissent – Within-Group Dissent in the NANA Region 264 7.4 Sites of Dissent – Minority Nation vs. The State (/Majority Nation) 268 7.5 Proportion of Debate For/Against the Offshore Exploration and Development 277 7.6 Sites of Dissent – Within-Group Dissent in Offshore Drilling 280 7.7 Sites of Dissent – Minority Nation vs. The State (/Majority Nation) 285

List of Appendices

Annex I. Chapter Five Appendices 329 Appendix I-A: Coding Schematic

Table I-A1: Institutional Fragmentation 329 Table I-A2: Institutional Identity 329 Appendix I-B: Regional Coding Table I-B1: Regional Scores of Fragmentation & Identity – Alaska 330 Table I-B2: Regional Scores of Fragmentation & Identity – NWT 331 Table I-B3: Summary – Regional Scores (Alaska & NWT) 332

Annex II. Chapter Six Appendices 333 Appendix II-A: Beaufort Offshore Drilling Figure II-A1: Proportion of Debate For/Against Offshore Drilling 333 Table II-A1: Arguments In Favour of Development 334 Table II-A2: Arguments Against Development 335 Appendix II-B: Mackenzie Gas Project Table II-B1: Arguments In Favour of Development 336 Table II-B2: Arguments Against Development 337 Figure II-B1: Proportion of Arguments For/Against Development, 338 by Actor

Annex III. Chapter Seven Appendices 339 Appendix III-A: The Red Dog Mine Table III-A1: Arguments In Favour of Development 339 Table III-A2: Arguments Against Development 340 Figure III-A1: Proportion of Debate For/Against Red Dog by Actor 341 Appendix III-B: Chukchi/Beaufort Offshore Exploration and Drilling Table III-B1: Arguments In Favour of Development Table III-B2: Arguments Against Development 342 Figure III-B1: Proportion of Arguments For/Against Development 343 by Actor 344 Table III-B3: Petitions & Appeals – Litigation to Block Development by Indigenous Groups 345

Chapter 1 – Introduction

1.1 Introduction

My dissertation aims to understand both the conditions that allowed for the emergence of institutions of multinational federalism in Canada and the United States, as well as their political implications and effects on the operation of the two federal systems. By studying institutions of

Indigenous governance under the lens of multinational federalism, my work helps to integrate an important, and often overlooked, part of the United States and Canadian federal systems. My dissertation provides both a theoretical and an empirical investigation into these innovative governance spaces. Through a cross-national case comparison, I explore the different ways states can grant autonomy, resources, and power to minority national groups, and test how differences in these processes affect political outcomes.

As federal political systems, the United States and Canada operate under an institutional framework that is theoretically well suited to addressing the political and representational needs of minority nations. Yet, both federations have struggled to effectively engage with their

Indigenous populations. While both have made overtures to accommodate Indigenous economic and political goals, and have increasingly recognized the rights of Indigenous nations to self- govern, many questions remain regarding the degree to which either federal system can truly address the aspirations of Indigenous minority nations. Are federal political systems flexible enough to address the governance goals of Indigenous nations, or do the power dynamics embedded within the federal system—dynamics that pit minority nation against the state and the majority polity—continue to dampen institutional outcomes, regardless of the progress made?

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Beginning in the early 1970s, both the United States and Canada began to institutionalize a new policy paradigm that recognized Indigenous nations as collective rights-holders. After centuries of colonial policies, and in a clear move away from the assimilationist preferences that marked the federal governments’ approach to the management of internal Indigenous nations in the first half of the 20th century, the federal governments introduced modern land claim agreements, which aimed to deal with the unfinished business of treaty-making in Canada and the United States. The implementation of modern land claim agreements set a new course in the management of the Indigenous-state relationship toward a more accommodation-based model of management (and in line with the broader shifts in the policy orientations of western states toward intra-state minority nations; Jackson-Preece 2005). The use of modern land claim agreements was important for two reasons. Firstly, modern land claim agreements institutionalized an ideological shift on the part of the United States and Canadian federal governments. Their implementation marked the recognition and legitimization of the claims by minority Indigenous nations over land and economic resources. While the ideational shift in the

1960s and 1970s largely restricted notions of Indigenous self-determination to economic considerations,1 modern land claim agreements set the stage for the recognition of Indigenous claims for political self-determination.

Secondly, the implementation of modern land claim agreements moved both federal governments away from a model of complete federal control; importantly, they abandoned the trustee model of governance, in which the federal government manages Indigenous lands and resources to the ‘benefit’ of Indigenous nations. In so doing, modern land claim agreements

1 The rationale for modern treaties was based primarily on arguments for better integrating Indigenous groups into the dominant economic framework (see chapter three).

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created novel self-rule institutions through new Indigenous governance bodies, which altered the organizational arrangements and established new sites of Indigenous authority. While the institutions created vary cross-nationally (and within country) based on the specifics of the finalized agreements, there are important similarities in institutional design. The primary institutional mechanism was the Indigenous regional corporation, created to hold collective fee simple title, and to manage lands and resources on behalf of the Indigenous group membership that was signatory to modern land claim agreements. The corporate institution provided a degree of self-rule for Indigenous nations, giving them direct control over land management, resource development, and the financial resources included as part of land claims settlements.

To a varying degree, both the United States and Canadian federal governments have also provided Indigenous nations with greater political representation within shared-rule institutions.

While the institutions of shared-rule in the context of Indigenous-state relations stretch the multinational federal framework, these institutions of governance function to advance similar goals. In the traditional literature on multinational federalism, shared-rule institutions are cast as centralized organizations that integrate minority national voices into decision making processes at the federal level.

Given the diversity of Indigenous nations within both the United States and Canada, this type of institution appears far from feasible, and it could potentially dilute the individual impact of minority Indigenous nations in decision making and processes of governance. Instead, we have seen the emergence of an alternative form of shared-rule institution in the form of co- management organizations, tasked with managing renewable (wildlife) or nonrenewable resources. In the United States, the development of shared-rule institutions has primarily been limited to bodies charged with overseeing subsistence practices, through the development of

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species-specific co-management organizations mandated with overseeing the management of wildlife resources, such as the Alaska Eskimo Whaling Commission (AEWC) or the Eskimo

Walrus Commission (EWC).

In Canada, shared-rule has taken on another important element that enhances the influence of Indigenous nations. In addition to co-management organizations that oversee subsistence practices or manage wildlife and nonrenewable resources, Indigenous nations with finalized modern treaties in the Northwest Territories have representation on shared-rule regulatory institutions, which review proposals for resource development, evaluating their potential environmental impacts, permitting the projects, and recommending their acceptability to the federal government.2 While these institutions tend not to have final say on the decisions taken, they clearly represent an attempt to include Indigenous nations in federal processes of decision making.

1.2 Federalism, Indigenous Minority Nations, and Conflict Potential – The Puzzle

In addition to the within-state governance shifts, I am also interested in why the governance models characterizing the Indigenous-state relationship in the northern United States

(Alaska) and Canada have diverged so significantly from one another, despite a common shift in the dominant policy paradigm? How do differences in institutional design shape the political dynamics of these regions in the contemporary political context? In answering these two questions, my dissertation research aims to address a fundamental line of inquiry into the capacity of federal political systems to incorporate minority national communities into the political-institutional framework.

2 This decision making authority now primarily rests with the territorial government, since devolution in 2015.

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Although historically they were not perceived as such, Indigenous groups in Canada and the United States can be viewed as minority nations within the context of multinational federalism.3 Indigenous nations, like all minority nations, occupy an historic territory, have common cultures and languages, and apply common laws and customs for members. To some degree, the categorization of Indigenous groups as minority nations is a process of defining in reverse. It is quite clearly the case that Indigenous nations stand apart from other minority populations in North America; for example, ethnic minorities due to immigration are not capable of making legitimate claims for political independence (Jackson-Preece 1998). Indigenous nations are much closer in form and function to contemporary sovereign states, with legal traditions and historic ties to specific territories. The unwillingness of the state to recognize these claims is unsurprising, as the legitimation of Indigenous claims to their historic territories demands at least some degree of territorial redistribution and thus has the potential to undermine the territorial stability of the state (Jackson-Preece 1998). Indeed, a state’s integration of minority national groups into the institutional framework—such as the United States and

Canadian federal governments’ recognition of Indigenous self-government—indicates that the state is taking seriously “minority nationalist claims for self-determination…and trying to accommodate them in a federal framework” (Schertzer 2016, p. 45).

For much of the post-contact period between Indigenous nations and new settlers (and settler governments), Indigenous nations have been systematically delegitimized and undermined by policies of land settlement and colonialism. It has only been in the last half-century that the

United States and Canadian federal governments began to reverse course and recognize

3 It is also important to note that many Indigenous nations argue that their pursuit of political self-determination is different from, and even in opposition to, the enterprise of nationalism, which is inherently imbued with western- colonial bias (Alfred 2005)

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Indigenous minority nations as such. In changing course on internal Indigenous nations, both countries have moved to recognize Indigenous goals for self-determination, the ability to “freely determine their political status and freely pursue their economic, social and cultural development” (United Nations 2008). The degree to which this level of Indigenous self- determination has become the dominant policy paradigm, however, is limited. Both the United

States and Canada have a long way to go before they could credibly claim the realization of this policy paradigm. Nonetheless, through the move to modern land claim agreements and the subsequent enlargement of the paradigm over the past half-century to include mechanisms for self-government, both countries have created institutions that move the Indigenous-state relationship in the direction of self-determination.

Beginning in the late 1960s, both the United States and Canada showed a willingness to engage with and recognize Indigenous goals of economic self-determination. That this recognition came first is perhaps unsurprising, as this goal has traditionally been better aligned with the states’ aims to close the gap, in terms of social and economic wellbeing, between

Indigenous and non-Indigenous populations. The recognition of Indigenous political self- determination, by comparison, has been much more contentious and contested. Both the United

States and Canadian federal governments have moved toward the recognition of national minority status through self-government mechanisms. In the United States, Indigenous self- determination was promoted through the recognition of the nation-to-nation relationship, and through federal policy that allowed tribal governments to take over the administration of federal programming in education and social services. In Canada, Indigenous self-determination has been progressively recognized through the willingness of the Canadian federal government to negotiate self-government agreements. Nonetheless, Indigenous self-government tends to be

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only one part of political self-determination, and as such, federal recognitions continue to fall well short of the political goals of internal Indigenous nations, or a true articulation of nation-to- nation relations (Steinman 2004).

Institutional creation through the development of self- and shared- rule is a tool that can be used by the state to address minority national conflict. The creation of new institutions helps to shift the site of conflict away from the traditional form of conflict that characterizes multinational federations: those between the minority national group(s) and the state (/the majority population). The creation of self-rule institutions shifts the site and makeup of the policy authority; in reconstituting where decision making happens, institutional creation moves political pressure away from the former authority (the federal government) and to the new authority (the minority national authority), which now oversees and administers specific policy areas. The creation of shared-rule institutions increases the voice of minority nations relative to the federal authority in more centralized venues of decision making.

While theories of multinational federalism posit that increased autonomy—or the development of shared authority—for national minority populations is a normatively good thing

(McGarry and O’Leary 2007; Kymlicka 1998), there is little consensus on how the governance itself should be structured. This lack of consensus is linked, in large part, to a generally limited research agenda exploring the specific political outcomes of institutional design. Because federalism can be relatively flexible in how it provides opportunities for the political representation of minority nations, there is considerable uncertainty regarding how the institutional models (of shared- and/or self-rule) will be constituted. As such, there is uncertainty over the degree to which a new institutional system meets the goals of minority national groups.

The recognition of minority nations can result in important asymmetries that can subsequently

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increase tensions within the multinational federal system. Formal asymmetries can emerge if re- institutionalization preferentially benefits one group above, or relative to another, fostering inter- group conflict. Meanwhile, as institutions restructure sites of authority within a national minority, informal asymmetries may emerge that give rise to intra-group conflict. For example, if jurisdictional autonomy is fragmented across several different institutions (as compared to the creation of comprehensive sites of authority), this type of institutional creation may increase the potential for within-group conflict. These questions are more than just functional questions of how institutions should be designed, or how they can or should operate; they have important implications for how well the multinational federal model can fulfill its promise to address the political goals of minority national groups. My dissertation tackles these questions in the case of

Indigenous minority nations in the northern United States (Alaska) and northern Canada, and investigates the political dynamics of institutional design through the lens of resource politics in the north.

1.3 Research Design

I designed the dissertation using a two-step approach, exploring two important facets of federal political systems and their ability to manage minority nations. In the first half of the dissertation, I investigate the intersection between federal political systems and a paradigmatic policy change that responded to the political demands of internal minority nations. In this section of the project, I explore the institutional potential of federalism as a political system that can, in theory, accommodate multinationalism. My research highlights the ways in which federal systems can be spaces of policy and institutional innovation while also drawing attention to the limitations of the system and the barriers that stand in the way of the full realization of

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Indigenous political goals in the United States and Canada.4 In the second half of the project, I investigate the political implications that stem from variations in governance models. Through the lens of resource development (a key site of conflict in northern politics), I test federalism as a process of political development by investigating how new governance institutions meet (or fail to meet) the political and representational needs of national minority populations, and the resulting implications for the ability of federal systems to moderate political tensions in multinational federations.

In adopting this two-phase approach to the investigation, my dissertation focuses on two key periods in the evolution of the Indigenous-state relationship in northern Canada and Alaska. The first period of study is from the mid-1960s through to the mid-1990s, a period during which the old policy paradigm of non-recognition and no negotiation gave way to the new policy

4 Policy innovation refers to a first order change in the ideological underpinnings that lead to a paradigm shift; by comparison, institutional innovation refers to a second-order change in which organizational or decision-making arrangements are created in response to the ideational shift, or act as a satisficing mechanism for policy actors (where the paradigm shift is incomplete).

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framework of self-determination, or at least one of economic self-determination.5 The new approach marked a key critical juncture6 in the policy approach to internal Indigenous nations in the United States and Canada. Both the United States and Canadian federal governments underwent very similar policy paradigm7 shifts with respect to the management of northern

Indigenous nations. Both abandoned a model that relied on a trustee relationship between the federal government and Indigenous nations, as implemented through the Indigenous reservation system. Instead, the two countries opted to negotiate or settle Indigenous claims to land and resources through modern land claim agreements, transferring private collective ownership and large cash settlements to new corporate institutions of Indigenous governance.

The second period of interest runs from approximately 2000-2015, upwards of thirty years following the implementation of the modern land claim agreement in Alaska (completed in

1971) and the introduction of the Official Policy of Negotiation in Canada (articulated in 1973).

Despite the fact that both the United States and Canada used similar policy instruments, the institutionalization of the new paradigm as a whole has resulted in considerable divergence in the organizational and decision-making arrangements, even in the North where this process was able to take hold more fully.8 To date, there has been no systematic analysis of the implications of this cross-national divergence in governance systems for the operation of political dynamics. This oversight exists even though there have been some clear political shifts that warrant further

5 The emergence of the new policy paradigm in the Indigenous-state relationship is a case of policy innovation, and is described in detail in chapter three. 6 Critical junctures are defined as “periods in history when the presence or absence of a specified causal force pushes multiple cases onto divergent long-term pathways, or pushes a single case onto a new political directory that diverges significantly from the old” (Slater and Simmons 2010). 7 A policy paradigm refers to the set of ideas that policy makers have regarding the policies that are possible or desirable, and the means and actors necessary for achieving them. 8 The proliferation of new governance arrangements indicates institutional innovation, which occurs during the institutionalization of a new policy paradigm, and is described in detail in chapter four.

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investigation. Since the finalization of modern land claim agreements, the political priorities of northern Indigenous leadership have taken a markedly different path; whereas the protest movements that generated the conditions for modern land claim agreements were primarily anti- development, since their implementation, Indigenous political leadership has increasingly favoured resource development. In many respects, this shift is not surprising, as the settlement of modern land claim agreements reconfigured the incentive structure by allowing Indigenous nations to benefit directly through access and benefit agreements, leasing lands to developers, or taxation (/taxation-like) actions which accrue economic resources to Indigenous nations. As well, the Indigenous nations/governance organizations that control lands can exert increased influence over industry actors, and secure additional benefits such as industry investments in community or social service activities, job training and skill development, or hiring quotas on new projects.

However, while Indigenous institutions are better able to capture the economic rents of resource development, many concerns remain regarding the influence of such economic activity on the subsistence practices, culture, health and wellbeing of Indigenous populations in the north.

To date, much of the research on modern land claim agreements, treaty development and implementation has focused on the ways in which new institutions interact within the federal policy framework, investigating these new institutions and their roles as part of a system of multilevel governance (Papillon 2011, 2012; Alcantara and Nelles 2014). While these dynamics are important, the literature has tended to depoliticize these new institutions and cast them as stakeholders in the policy process or the co-producers of policy decisions, rather than as institutions that fulfill a unique political role within a multinational federation. And yet, the push for institutional creation within the federal system, and the subsequent evolution of new governance regimes, is profoundly political. In returning to these more political questions, my

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dissertation research explores the ways in which new sites of authority and decision-making power satisfy (or not) the political goals of Indigenous nations that spurred both the policy and institutional innovation of the last half century.

1.4 Case Selection and Methodology

My research design draws from theories of historical institutionalism (Hall and Taylor

1996; Thelen 1999; Streeck and Thelen 2005; Diermeier and Krehbiel 2003). The first stage of my dissertation draws on this theory by (1) formally characterizing the institutions in effect at the time of the paradigm shift; (2) defining the settings for collective choice available to political actors engaged in the process; and (3) characterizing both the political behaviour of political actors (in responding to the opportunities and constraints of the political setting), and the institutional outcomes that result from that behavior (Diermeier and Krehbiel 2003). The second stage of my dissertation continues along the pathway of institutional theory, comparing the implications of institutional change empirical regularities and data both within, and across, cases.

In this section, I first justify my decision to use process tracing and historical institutionalism as an approach to understanding the conditions for the paradigmatic shift in the states’ approach to the management of Indigenous minority nations. Secondly, I justify my decision to use a media analysis for exploring the political dynamics characterizing the contemporary political landscape in Alaska and the Northwest Territories. In each section, I discuss the data I use to drive the analysis.

The rationale for a cross-case analysis of Canada and the United States is based on a most-similar case design. Both states are federal political systems that have a long history of

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colonization of Indigenous peoples. Although there are some important differences in the way in which federal policies evolved over time, the United States and Canada are particularly similar with respect to the federal governments’ historic relationship with northern Indigenous populations. The combined factors of geographic remoteness, a general policy of neglect, and a persistent failure by the federal governments to develop a strong presence in the North (in large part due to the costs and logistical difficulties associated with doing so) meant that northern

Indigenous populations experienced the federal relationship very differently than their southern counterparts. In Alaska, no treaties were ever signed between Alaska Native groups and the federal government after the government purchased the territory from (what is today) Russia.

The model of native reservations, through the designation of Indigenous trust lands, was never truly implemented.9 In Canada, the same was largely true for northern Indigenous populations in the Yukon and Northwest Territories. Although Treaties 8 and 11 were negotiated and extended well into the northernmost regions of the Canadian mainland, implementation was another matter entirely, and the federal government failed to live up to many of its negotiated responsibilities.

Meanwhile, the Inuit and Métis populations of the northern territories lacked any formal relationship with the state, as not only had they never signed treaties with the Crown, they were also not recognized under the Indian Act of 1876.

These histories, and the trajectory of the Indigenous-state relationship in both countries, are embedded in institutions. Institutions are “formal or informal procedures, routines, norms and conventions embedded in the organizational structure of the polity or political economy” (Hall and Taylor 1996; p. 937). As a theory, historical institutionalism guides the inquiry of this

9 With one exception: the Metlakatla Indian Community opted out of the ANCSA process, retaining their rights to their lands and waters, and creating the only federally recognized Indian reservation in the State of Alaska.

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dissertation research. The theory allows me to draw out the relationship between institutions and individual behaviour, as the approach emphasizes how asymmetries in power shape the development and operation of institutions (Hall and Taylor 1996). This emphasis on relative power is particularly important in the exploration of the shift towards, and institutionalization of, the new paradigm in the United States and Canadian Indigenous-state relationship. In both countries, this is a relationship marked by a wide gap in relative power, solidified through centuries of destructive colonial policies that stripped Indigenous nations of their autonomy.

Historical institutionalism is primarily concerned with the causal impact of temporality in politics, exploring the contextual features that guide collective choice and collective behaviour

(Hall and Taylor 1996; Thelen 1999; Streeck and Thelen 2005; Diermeier and Krehbiel 2003).

As such, scholars relying on the approach tend to emphasize path dependent, self-reinforcing feedback loops, or unintended consequences as part of the process of institutionalizing new policy paradigms, while also paying attention to the contribution of other important contextual factors—such as the role of ideas (Beland 2009).

In adopting the historical institutional approach, I can investigate how the specific institutional features of federal systems—including the impact of policy legacies that differentially affect the federal system—shape the evolution of the Indigenous-state relationship, and the patterns of institutional evolution across two cases. Although historical institutionalism has traditionally been associated with path dependent models of change, my analysis relies heavily on theories of gradual change, which “start from the assumption that, due to their distributive consequences, political institutions are challenged through entrepreneurial agents on an ongoing basis” (Broschek 2013, p. 96). Under theories of gradual change, institutional evolution is an expected outcome. Early decisions that shape institutionalization ultimately create

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more or less favourable conditions for change, which shape the strategies of policy or political actors as they pursue their goals. Theories of gradual change posit that policies and institutions can evolve through one of four different mechanisms: (1) layering, which entails new elements being added incrementally and altering the function or impact of an institution or policy; (2) displacement, which sees the gradual removal of old rules and structures, and their replacement by new ones; (3) conversion, which sees political/policy entrepreneurs exploit institutional ambiguities to endow them with new purposes or functions; and (4) drift, in which political actors deliberately fail to adjust the institutional framework to respond to changing political, social, or economic contexts (Streeck and Thelen 2005; Hacker 2005). However, not all strategies are equally accessible to minority-nation political entrepreneurs, and teasing out the processes of institutional change across a comparative case analysis can allow us to better understand how early new institutions affect the strategies of political actors seeking to fulfill their goals.

Process tracing techniques are a common tool in historical institutionalist studies that use a longitudinal research design and multiple types of evidence to examine the processes and mechanisms of change. Process tracing is a form of within-case analysis that can be used to examine sequences within cases to develop theoretical ideas. It is a method “that relies on historical sequencing, close interpretation, and thick evidence” (Steinman 2005; p. 764), and with its reliance on within-case analysis for theory building and testing, process tracing emphasizes the internal validity of causal mechanisms over external validity (Beach and

Pederson 2013). In so doing, process tracing can make up for certain limitations that are inherent in controlled comparisons. Because it is a near-impossibility to compare cases that are similar with respect to all variables of interest but one, “process-tracing can help assess whether each of

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the potential causal variables in the imperfectly matched cases can, or cannot, be ruled out as having causal significance” (George and Bennett 2005; p. 215). In my dissertation, I apply process tracing techniques to archival documents, showing how specific actors and institutional legacies shaped the institutionalization of a new policy paradigm in the United States and

Canada, resulting in the contemporary governance system. Moreover, by applying these techniques across two cases, I strengthen the confidence and the generalizability of my findings.

For the first half of the dissertation (Chapters Two through Four), I rely heavily on primary documents from archival research. I accessed several different types of primary documents, including government briefs and memoranda—including internal cabinet documents

(Canada), legislative drafts (United States) and lobbying documents, reports to Congress and to the cabinet—as well as letters between Indigenous political actors and government officials, official reports, and documents internal to the major Indigenous political organizations leading negotiations. I supplemented the primary documentation with newspaper articles and the secondary literature. I conducted archival work at the University of Alaska Consortium Library, the Tuzzy Library in Barrow Alaska, and the National Archives in Washington, DC. I also conducted archival work at the Prince of Wales Northern Heritage Centre in Yellowknife, NWT, and accessed a limited set of cabinet documents from the Archives Canada website. As the shift towards the new policy paradigm took place over thirty years ago, my access to internal (and previously confidential) government documents allowed me to document the longitudinal approach by which it occurred. To sketch out the dependent variable (the variation of resultant governance models in Alaska as compared to the Northwest Territories), I also relied on information garnered through 34 interviews in the NANA Region of Alaska, and the Inuvialuit

Settlement Region of the Northwest Territories.

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Institutionalization is “the process by which a given set of units and a pattern of activities come to be normatively and cognitively held in place, and practically taken for granted” as the dominant paradigm (Meyer, Boli, and Thomas 1987; p. 13). In the first half of the dissertation, I trace the factors at play that caused the institutionalization of Indigenous self-determination to diverge across the two cases of Alaska and the Northwest Territories. As both governance systems evolved over the period of 30 years, the divergence in governance frameworks took on two important sites of difference, particularly as it pertained to situating Indigenous governance within a multinational federal system. Firstly, in Alaska, the link between institutional creation and Indigenous national identity was relatively weak as compared to northern Canada. Secondly,

Indigenous nations in Alaska used bypassing strategies to reach their political goals, resulting in greater institutional fragmentation as compared to northern Canada (see Chapters Three and Four for the full analysis). These differences in the form and nature of institutional creation shape the methodological design in the second half of the dissertation.

As in the larger case selection comparing the political and institutional evolution of Alaska

Native peoples with the political and institutional evolution of Indigenous peoples in the

Northwest Territories (NWT), the selection of cases within each of these regions is based on a most-similar case design. Although there are important points of divergence, which are explored in detail in Chapter Five, several endogenous factors present in the processes of institutionalization have allowed some regions in Alaska to look and function in a similar fashion to some of the regions in the NWT. The specific case analysis focuses primarily on the Inuvialuit and the Gwich’in Settlement Regions of the Northwest Territories, and the NANA (Northwest

Arctic Native Association) and the North Slope Regions of Alaska. Here, the case selection

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depends primarily on the similarities in the governance characteristics between the Alaska and

NWT cases, namely, the degree to which institutions of governance are tied to indigenous national identities, and the degree to which governance roles and responsibilities are consolidated among the institutions of governance. Two additional factors—the timing of institutional creation and specific population demographics—support the rationale for the regions of interest (see Chapter Five for details).

In the second half of the dissertation (Chapters Five through Seven), I rely on a mix of primary documents from archival research, and on the coding of 757 newspaper articles utilized for the media analysis sections of Chapters Six and Seven. Chapter Five relies primarily on documents both primary and secondary, that trace the concerns raised by state actors (including federal government politicians and bureaucrats, as well as state and territorial politicians and analysts) as well as testimony from the Alaska Native Claims Review Commission, as recorded in Thomas Berger’s book Village Journey and from online archives (primarily Alaskool.org which provides educational materials on Alaska Native history). I complemented my analysis of contemporary dynamics through participant observation, attending several community consultations and public meetings on resource development and offshore drilling.

Chapters Six and Seven rely primarily on newspaper coverage as the source of data, which

I supplemented with interview data to analyze each of the cases of resource development. To understand the dynamics of political discourse and dissent over resource development, I relied on northern news media coverage over the course of two public debates on specific resource development projects being proposed in the NANA/North Slope regions of Alaska and in the

Inuvialuit/Gwich’in regions of the Northwest Territories. I inductively coded newspaper coverage for core arguments for and against the resource development projects using the

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qualitative coding software, NVivo, which allowed me to track the evolution of the political debate and to identify the patterns of political conflict (the coding frameworks are available in the Appendices of chapters six and seven). In the case of the Northwest Territories, the media analysis relies on newspaper coverage from News/North, the weekly NWT newspaper based in

Yellowknife, NWT with offices in Hay River, Fort Providence, Fort Smith, and Norman Wells.10

News/North also has sister publications in the Dehcho Drum (now discontinued), the Inuvik

Drum, and the Yellowknifer. Site searches of the News/North online archive returns results from all related publications. In the case of the Beaufort offshore drilling, the analysis relies on 74 articles from January 2008 to June of 2015.11 In the case of the Mackenzie Valley Gas Project, the analysis relies on 219 newspaper articles from January 2000 to December 2010. In the case of Alaska, the media analysis relies on newspaper coverage from the Anchorage Daily News, the highest circulation newspaper in the state. In the case of the Red Dog Mine expansion, the analysis relies on 196 articles from January 2000 to December of 2010. In the case of offshore drilling in the Beaufort and Chukchi Seas, the analysis relies on 268 newspaper articles from

January 2007 to July 2014, when the Arctic Slope Regional Corporation and six North Slope village corporations announced a joint venture with Shell to move forward with offshore development (Rosen 2014).

1.5 Chapter Description

The remainder of the dissertation is organized as follows. Chapter Two reviews theories of multinational federalism in relation to the Indigenous minority nation, a minority national group frequently excluded from the multinational framework. Chapters Three through Seven

10 At some point after 1999, News/North became News/North NWT to distinguish it from News/North Nunavut. 11 As a weekly newspaper, the coverage results are considerably lower than data available in Alaska; the primary newspaper, the Anchorage Daily Times, is a daily paper.

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contain the empirical analysis of the dissertation. Chapter Three investigates the paradigm shift in federal policy, tracing the conditions that enabled the policy change and the competing mix of policy options on the table during the transition phase between old and new paradigms. This chapter emphasizes a period of policy innovation, highlighting through the cross-national comparison the importance of clear jurisdictional authority to push through rapid policy change, while also positing the limitations that institutional legacies create for the successful adoption of a paradigm shift throughout a federal system as a whole. Chapter Four explores the period of paradigm institutionalization, during which newly empowered Indigenous actors worked to solidify and expand their political wins by enlarging the policy paradigm to include components of political self-determination. Drawing on theories of gradual policy change, the chapter argues that differences in the choice of policy tools utilized to institutionalize the paradigm shift shaped both the nature of subsequent political action and the subsequent governance structure. Chapter

Five re-situates the contemporary governance in theories of multinational federalism, exploring the conflict potential of the federalized North since the introduction of modern land claim agreements. The chapter highlights concerns raised by federal and territorial politicians and bureaucrats, and Indigenous leadership across both Alaska and the Northwest Territories to develop a framework of potential contestation. Chapters Six and Seven test these sites of contestation across a total of four contemporary resource development debates in Inuvialuit and

Gwich’in regions of the Northwest Territories (Chapter Six), and in the NANA and North Slope regions in Alaska (Chapter Seven).

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Chapter 2 – The Indigenous-State Relationship in Canada and the United States: Federalization in Theory and Practice

2.1 The Indigenous-State Relationship in Canada and the United States

In this chapter, I provide a historical overview of the dynamics of the Indigenous-state relationship in Canada and the United States, and outline the ways by which policy and institutional legacies can shape the evolution of a multinational federal system. I lay the theoretical foundation necessary to understand the rationale for a state’s recognition, and subsequent accommodation of, internal minority nations.

The framework of multinational federalism does not fit neatly onto the study of an evolving Indigenous-state relationship in Canada and the United States. The approach has several limitations, including the fact that it has tended to not take seriously Indigenous minority nations as such. In this chapter, I explore the contours of the multinational federal framework and its application to the Indigenous-state relationship. I highlight several important concepts that improve our ability to investigate the implications of policy change for the integration of

Indigenous nations into the federal institutional system, and for studying the implications of institutional change for federal political dynamics.

The introduction of modern land claim agreements in the early 1970s marked a clear shift away from the previously dominant paradigm, which tended to deal with internal Indigenous nations through policies of assimilation, attempting to subsume Indigenous peoples within the broader population. The turn towards modern land claim agreements marked the first step towards creating new institutions of governance, which embedded Indigenous aspirations for economic self-determination. Two such analytical frames for understanding the relative ‘success’ of modern land claim agreements as a tool to meet Indigenous national goals are representational

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efficiency and representational capacity. Representational efficiency refers primarily to the creation of self-rule institutions in response to the demands of minority nations. Under this lens, federalism is viewed as a system that is defined by its constituencies, but whose constituencies are subsequently shaped by federal arrangements. This lens raises several questions as to whether institutional creation within the existing federal structure, in and of itself, can satisfy the political desires of minority nations. By comparison, representational capacity refers primarily to the creation or modification of shared-rule institutions, as a means of integrating minority national voices into central venues of decision making. Although unconventional in their form and nature, the recognition of Indigenous minority nations in the 1970s engaged in institution-building efforts that did exactly this.

In applying the multinational federal framework to the Indigenous-state relationship, my exploration of the literature highlights several conditions under which federal political systems are likely to accommodate Indigenous political goals through a multinational federal model. I argue that the willingness of the federal governments to move towards a multinational federal model—and the ability for such a model to take hold in the North—was conditional upon the mix of three factors. These three factors were: first, the emergence of a new policy ideology that recognized Indigenous peoples as rights-holding communities with legitimate claims; second, the exercise of substantial control over Indigenous peoples by the federal government (aided by low settler populations in the north); and third, a shift in the distribution of power between the state and northern Indigenous peoples. In both the United States and Canada, the negotiation of multinational institutions of governance was a compromise on the part of the federal governments in response to politically mobilized Indigenous national minority populations. To develop this explanatory account, the chapter proceeds in two sections. In the first section, I

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review the literature and explore the institutional value of federalism in multinational states, situating the claims that federal institutions can meet the political goals of internal minority nations within the context of the Indigenous-state relationship. In the second section, I explore limitations of the multinational model for Indigenous minority nations in the United States and

Canada, highlighting several questions that guide the inquiry of the dissertation.

2.2 Indigenous Nations and the Multinational Federation

Federalism is a political system in which two or more levels of government “combine elements of shared-rule through common institutions and regional self-rule for the governments of constituent units” (Watts 1996, p. 7). The federal institutional system is, at least in theory, uniquely suited to managing diverse political goals in pluralist societies. The political structure allows for a unified national political order, while simultaneously addressing—or maintaining the ability to address—distinct regional differences and cultural divisions that can otherwise threaten to divide the national population.

As described in the last chapter, minority nations are groups that occupy an historic territory, sharing common myths and memories, a common culture, and in some cases, common laws and customs for members. These nations are embedded within and constitute a minority of the population of a larger political entity. From a state-centric perspective, minority nations pose a threat to the sovereignty of the state, as they can make claims to territory. As such, minority nations are fundamentally different from other minority groups. In their relationship to the majority population, minority nations are the weaker partners—numerically and/or substantively—to the majority partner that tends to control or dominate the national political

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system.12 Yet despite their relatively lesser position of power within the political environment— and even in systems where majority nations explicitly exert their influence to undermine collective identity—minority nations can continue to hold a strong sense of solidarity. Within this context, minority nations often maintain an active interest in preserving or increasing their political autonomy as a means of protecting their distinct national identity (Jackson-Preece 1998;

Schertzer 2008).

Indigenous populations in Canada and the United States have only recently been considered under the framework of multinational federalism. This framework casts federal political systems as having the institutional potential to mediate a compromise between minority national groups seeking self-determination and the political goals of federal leadership. Even though Indigenous populations are political and cultural groups that generally fit the broad definition of minority nation, their long exemption from the multinational federalism framework can be explained by several factors. The western scholarly tradition tended to (and in some cases continues to) view Indigenous peoples of North America as culturally and racially inferior to

European settlers. For much of North America’s political history, this racism has delegitimized

Indigenous legal frameworks, oral histories and unwritten languages, and political structures.

This systematic de-legitimization of nationhood by the majority population has subsequently undermined the ability of Indigenous groups to advocate for their political interests under the

12 Schertzer and Woods (2011) rightly note that much of the literature on multinational federalism conflates the state with the majority population—as it is generally the case that the majority partner controls the institutional and political architecture, which minority nations subsequently protest. For the purposes of this chapter, I will similarly conflate majority partner and the state, since Indigenous nations have historically had little access to the dominant political system.

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framework of multinational federalism, or to be recognized as such within the broader academic literature. 13

Other factors have also likely contributed to Indigenous peoples’ late inclusion into the framework of multinational federalism. The multinational framework tends to assume that internal minority nations exist as relatively large, culturally homogenous, and territorially concentrated groups that can be accommodated through forms of territorial autonomy. However,

Indigenous peoples in North America are not one single entity; they are a highly heterogeneous and geographically dispersed population.

In the United States, there are 566 federally recognized tribal groups speaking 169 distinct Native languages (Siebens and Julian 2011). Tribal groups vary considerably in their governance models, relationships with state and local governments, conditions for membership, and size. For example, the Cherokee nation numbers over 700,000 while the Augustine Band of

Cahuilla Indians in California has a tribal membership of just eight. Meanwhile, many

Indigenous nations continue to go unrecognized by the United States federal government; approximately 100 Indigenous tribal groups continue to seek federal recognition (Ahtone 2014).

In Canada, the Indigenous population is similarly diverse. Of the over one million individuals who identify with an Indigenous group in Canada, close to 60 percent identify as First Nations,

35 percent identify as Métis, and four percent identify as Inuit (Statistics Canada 2017).14 There are approximately 55 distinct Indigenous Nations, 70 Indigenous languages spoken throughout

13 Despite the late inclusion of Indigenous nations under the multinational federal framework, the language of Indigenous nationhood has been long utilized within the North American context. In the United States, treaties between the United States federal government and Indigenous populations used the language of nationhood as early as early as the late 18th century (Cornell 2015, referencing Kappler 1904). The language of nationhood has a similar presence in Canada, and “First Nations” is now common vernacular in referring to Indigenous nations in Canada, and has been formalized through legislation and policy (Cornell 2015). 14 Some of these numbers have come under scrutiny; in particular, there was a large increase in self-reported Métis identity, up 149.2% in Quebec and up 124.3% in Atlantic Canada since the 2006 census.

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the country, and over 600 First Nations/Indian bands (RCAP 1996, p. 26-27). There are many

Indigenous nations and there are many forms of Indigenous nationalism. Each nation has its own traditions, history, language, and sense of collective identity.

The diversity of Indigenous nations throughout North America ultimately complicates the implementation of the concept of multinational federalism. Yet, despite these challenges, the concept nonetheless offers considerable theoretical purchase for understanding both the impetus for, and implications of, the state’s recognition and legitimation of the political goals of internal

Indigenous nations. In both the United States and Canadian contexts, the framework helps us to understand the decision by the United States and Canadian federal governments to federalize: that is, to create new institutions of self- and shared-rule as a means of sharing sovereignty—in response to the demands of Indigenous minority nations in the North. The struggle for

Indigenous self-determination in North America in the post-war period has largely been a peaceful one (with some notable exceptions), and Indigenous national struggles against the state successfully challenged the legitimacy of a status-quo political order that failed to recognize internal Indigenous nations. Yet despite the institutional opportunity for increased governing autonomy embedded within the federal political structure, contemporary institutional frameworks continue to fall well short of the representational and self-rule visions of Indigenous nations.

Several factors exist that can impede or facilitate the further federalization of a political system to accommodate minority nations. My dissertation research points to two such factors.

Federalization is made possible when there is clear jurisdictional authority over the relationship between the state and the minority nation. Both the United States and Canadian federal governments held primary authority for mediating the relationship with internal Indigenous

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nations. While on the one hand this meant that decades of stasis in federal policy could take hold to undermine Indigenous nations, on the other hand, it also meant that the federal government could move relatively quickly in response to changing political and structural conditions. This was particularly true in the North, where fewer institutional legacies existed to impede policy change. In cases where there are greater checks and balances—for example, where federalization requires a change to constitutional documents, which can in turn engage subnational governments as veto players—federalization becomes much more challenging. Certainly, we have seen this play out with the failure of reforms aimed at increasing the voice of Indigenous nations in national shared-rule institutions as part of constitutional processes. In Canada, the failure of the Charlottetown Accord meant that several opportunities for increased federalization—including the constitutional recognition of the inherent Indigenous right to self- government, the introduction of designated Indigenous seats in the Canadian Senate, and a formal consultation process to engage Canada’s First Peoples in the candidate list to fill vacancies in the Supreme Court of Canada—went unmet.15

Federalization is also made possible when there are fewer legacies that require either institutional displacement or institutional integration with a new paradigm. Institutional legacies can constrain both federal (state-level) actors and policy entrepreneurs (minority-partner actors) alike as they seek to satisfy their political goals. In either case, the potential loss of an existing institution, or the concerns raised regarding the integration of disparate or competing ideas under a single institutional framework, may be too great to overcome in favour of the benefits provided by federalization (Alcantara and Davidson 2015).

15 It should be noted that, while there was considerable variation by Indigenous groups and across Canada, the majority of Canada’s Indigenous population also voted against the Charlottetown Accord; it was viewed by many as a highly imperfect attempt at engaging Indigenous Canada (Scholtz 2008).

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The next two sections of the chapter consider how two components of a multinational federal system intersect with Indigenous goals for increased autonomy within the federal system.

The first part of the chapter explores the institutional value of federalism and the ability of federal institutions to respond to the demands of Indigenous minority nations in a multinational state. The second part of the chapter explores the value of federalism as it relates to political development: that is, the creation of institutions to address the equality of participation in governance and decision-making processes. It considers the impact of institutional design for the framework of multinational federalism and explores how differences in governance models shape the ability of the federal system to modulate concerns between the majority population and minority national groups by shifting the site of political representation and governance.

2.2.1 The Institutional Value of Federalism in a Multinational State

In the context of a multinational state, federalism offers considerable institutional potential. In response to the political claims of internal minority nations, a federal political system can allow the national government to retain its territorial integrity while simultaneously providing opportunities for greater political representation within shared rule institutions or through the creation of new institutions of self-rule as a means of increasing self-governing autonomy (Bakke and Wibbels 2006). In so doing, federalism allows for a degree of compromise between the central government—which aims to secure its authority over the state—and regional groups that may be distinct based on their language, territory, culture, or religion, and that seek greater self-determination and/or the opportunity to better protect their rights (Loughlin 2000). A strong scholarly literature has emerged that argues the merits of the federal political system as a means of accommodating the diverse interests of heterogeneous populations (Kymlicka 1998;

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Resnick 2012; McRoberts 2001; McGarry and O’Leary 2007; Simeon 2009). While not all federal systems may engage in this form of institutional change in response to the demands of minority nations, a growing literature on ethnic nationalism has reaffirmed the unique capacity of the federal political system to simultaneously manage internal nations while advancing national goals (McGarry and O’Leary 2007; Wolff 2009). This literature, in particular, highlights the potential of federalism to act as a peace preserving tool for multinational federations (Bakke and

Wibbels 2006).16

From the bottom-up perspective of change, federalism offers several institutional or political mechanisms through which national minority groups can push for greater autonomy and

“improve their status within the existing boundaries of the state as an alternative to secession”

(Agranoff 2004, p. 27). The creation of institutions of self-rule is viewed as a political alternative to conflict, violence, or state breakup through secession (Wolff 2009). However, the argument that federal political systems are better able (than other political systems) to manage the internal conflicts of multinational states has not gone unchallenged. Some scholars have argued that by conceding to internal nations, federal systems may in fact undermine continued peace and stability (Horowitz 2000). While in some cases the peace-preserving features of federalism may win out, federal systems can also heighten the salience of cultural or national difference. By organizing political institutions along nationality lines, federalism arguably equips minority national groups with increased institutional capacity. Minority nations can consolidate power or utilize the new institutions to enhance the internal sense of nationhood, ultimately strengthening

16 However, the capacity of federalism to act in this way has its limitations. Marie-Joelle Zahar (2013) argues that though the promise of federalism exists, the practicalities of bringing together ethnic groups that have been engaged in sustained conflict (i.e. a prolonged war with one another) are difficult to overcome.

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subsequent political mobilization and attempts at secession (Bednar 2011; Christin and Hug

2012; Bakke and Wibbels 2006).

The theoretical link between institutional recognition of minority nations in self-ruling institutions to these nations’ subsequent secessionist goals finds traction in Canada, in the

Quebec secessionist movement in the late 1980s and early 1990s. Did Quebec attempt to secede from Canada due to a failure of the multinational project, wherein the federal government’s systematic failure to adequately recognize its status as a distinct society within Canada fueled resentment and Quebec nationalism? Or did years of federal government acquiescence to

Quebec, as both a nation and a province within Canada, enable the Québécois to secure the necessary resources (including a heightened sense of Quebec nationalism) to push for secession?

(McDougall 2017)

Although federalism offers a dynamic and flexible institutional model, the promise of federalism for minority nations necessarily relies on the willingness of the central government to cede power and authority. As such, the deliberate restructuring of the political system to meet specific governance goals and aims is shaped by the preferences of the state/majority nation, as well as by the normative and ideological constraints arising at the time and place that new institutions develop. Moreover, in federalizing to address the specific political dissent of a minority nation, the political goal motivating the process is less about removing dissent from the political system than it is shifting either the site of conflict or the composition of dissenters. In

Canada, the willingness of the Canadian federal government to acquiesce to the policy demands of Quebec was only seriously engaged by the federal government as the secessionist movement in Quebec gained steam. Instituting a more flexible model of federalism—one that moved

Canada towards a system of federalism that preferentially cedes political authority to Quebec as

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a means of maintaining the union—was a response to the threat of dissolution and sustained dissent.17 Similarly, in the case of northern Indigenous minority nations in Alaska and northern

Canada, a willingness to engage with Indigenous political goals was only seriously entertained by the United States and Canadian federal governments when faced with economic ramifications

(through an inability to proceed with planned resource development projects) and increased uncertainty as a result of court challenges regarding the viability of the status-quo approach

(Scholtz 2006).

Scholars who study the conditions under which internal minority nations push for autonomy—and the factors that make such a push successful—view federalization as a political or institutional compromise to deal with fissiparous conflicts between a minority national group and the state (or one or more minority groups against the majority; Hale 2004). The creation of new shared- or self-rule institutions ultimately aims to diminish these tensions. In opting to reconfigure the political system, however, federalization may exacerbate existing sites of conflict in one of two ways. Federalization may exacerbate unit (inter-governmental) competition, whereby the minority nation competes for resources at the expense of the majority. Alternatively, federalization may exacerbate asymmetrical sub-national autonomy, as the minority nation seeks to secure legitimacy or organizational power relative to the other majority subunits (Bednar

2011; Brancati 2006).

In focusing primarily on the conflicts that arise between the majority (/the state) and minority nation(s), the multinational federal framework assumes a high degree of within-group homogeneity, at least with respect to the political goals of the minority nation. The approach

17 Some would also argue that the degree to which Canadian federalism is asymmetrical vis-à-vis Quebec is generally overstated. In many cases, the government of Canada has acquiesced to Quebec by simultaneously opening up the opportunity for greater policy authority to all the provinces in the federation - as an attempt to maintain the primacy of the territorial federation over the multinational federation (Resnick 2012; Woods 2012).

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views the preferences of the minority nation as coordinated and relatively static (Schertzer and

Woods 2011). Within the constraints of minority-state conflict, the assumption of homogenous within-group preferences for greater power and autonomy is both internally coherent and reasonable. However, the group homogeneity assumption breaks down once autonomy is realized and institutionalized. As polities are re-assembled under new institutions of governance, new constituencies are created that “generate expectations, [and] facilitate interest organization in some cases, and facilitate interest disarticulation in others” (Thelen 2000, p. 102). With the autonomy preference secured, in-group stratification and divergent preferences—such as over group leadership, the allocation of new resources, or decisions over new policy areas—can emerge. Moreover, the degree and type of autonomy secured by a national group will shape the way in which conflict (re)emerges.

Federalism can be flexible in how it provides opportunities for minority nations and the ways in which institutions of political representation are reinforced or created. While federal political systems often struggle in their ability to effectively integrate minority nations into existing institutional structures (Schertzer 2016), opportunities exist in the creation of new institutions of self- or shared-rule. For newly created institutions designed to address the political goals of internal nations, the division of power is not necessarily fixed or fully pre-conceived.

Institutional flexibility allows federal political systems to respond to a diverse set of internal demands; it can enable the development of asymmetrical units in response to the discrete demands of a region or the preferences of a sub-nationally defined ethnic group (Kymlicka

1998). Asymmetry can be formalized as the product of the discrete devolution of policy authority and/or autonomy to one or more internal nations. Informal asymmetries may also be fostered

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through the de facto devolution of power or authority, allowing minority nations to operate asymmetrically in practice if not through constitutional or legislative mechanisms.

In the creation of new institutions, formal asymmetries can emerge when negotiated agreements privilege one or more internal nations over others. The development of institutions that consolidate more power—be it financial, political, or jurisdictional—in one group relative to that of another can foster inter-group conflict. This type of conflict is important in the case of modern land claim agreements, as the temporal nature of negotiated agreements has resulted in variations in governing authority. While early claimant groups (including the James Bay Cree and Inuit in Quebec, and the Inuvialuit in the Northwest Territories) benefitted from negotiating with a government that had not yet fully articulated its vision of modern lands claims, on the whole, groups that negotiated their claims later in the process have had access to a greater number of resources (including policy learning effects18), and can work from a baseline of previously negotiated agreements (Alcantara 2007). Federal asymmetry, thus, is not always a product of clearly defined political goals and can be adopted through informal means.

For multinational federations that have recognized internal nations through the creation of new (or the modification of existing) institutions, the potential sites of conflict become more complex. Within new institutional forums, conflict emerges not only between the minority and the majority, but also between actors within nations. Where minority nations have similar levels of autonomy, but different institutional structures, some models of governance will be better than

18 Certainly, it was the case that the Inuit in Nunavut learned from the Inuvialuit Final Agreement (IFA); they did not want IFA-style co-management boards, but rather wanted the creation of boards with ‘teeth’. However, policy learning is not constrained to one side, and the federal government learns as well. In this way you can have retrenchment in some areas; for example, the IFA has a provision for a functional arbitration process, while the Nunavut claim has an arbitration process that requires agreement by both parties. However, with respect to the Nunavut claim, the federal government only agreed to arbitration when forced to by the recent settlement of a lawsuit brought by Nunavut Tunngavik Inc. (NTI) (Nunavut Tunngavik Inc. 2015)

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others at responding to intra-group heterogeneous preferences. The conflict “within nations is about the very definition and direction of the group” (Schertzer and Woods 2011, p. 201), and relates to a second type of asymmetry that may act as an important site of conflict. The development of self- and shared rule institutions intersects with considerations around how the institutions of autonomy are designed and implemented. Beyond the baseline agreement that the increased autonomy (or shared authority) of national minority populations is a normatively good thing, there is no consensus on how the governance itself should be structured. Hooghe and

Marks (2003) raise several important questions along this vein of inquiry: “Should jurisdictions be designed around particular communities, or should they be designed around particular policy problems? …Should jurisdictions be limited in number, or should they proliferate? Should jurisdictions be designed to last, or should they be fluid?” (p. 236). These questions are questions of institutional design. Does institutional fragmentation heighten the potential for within-group conflict by diffusing jurisdictional authority across a higher number of policy-constrained institutions? Alternatively, does the development of comprehensive sites of authority undermine the ability of federal institutions to reduce conflict between the minority nation by allowing minority nations to more effectively accumulate power and resources? These questions are more than just functional questions of how governance can or should operate. They have important implications for how well new institutions can fulfill their role of increasing the authority of minority national groups, affecting both their representational capacity and raising questions about the degree to which new institutions can endure in their roles.

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2.2.2 Federalism as Political Development

Federal political systems are believed to act more efficiently than unitary systems of government19 in another respect. Scholars have suggested that the division of powers between national and regional governments better serves citizens by locating at least some decision makers closer to the population being served. The argument is based on the idea that regional populations may have a distinct set of characteristics, policy preferences, or cultural needs that are better addressed by jurisdictional regionalism than by a single national approach (Tiebout

1956; Oates 1999; Begg et al. 1993).20 Under this model, citizens are better able to maximize their preferences within federal political systems as they can opt to vote with their feet, and to choose the subnational jurisdiction that most closely aligns with their preferences, ideologies, or service needs.

The mobility of citizens arguably increases the representational efficiency of the federal system. Viewed in this light, federalism is a political arrangement whose institutions are shaped by political constituencies, but whose political constituencies are themselves shaped in turn by federal arrangements (Bednar 2011). This lens raises several questions about how well institutions can modulate the relationship between governments and the communities they aim to represent, and whether institutional creation in and of itself can effectively address the political desires of internal minority nations. Although research suggests that singular policy changes do not appear to be a factor in population moves, there is anecdotal evidence that representational efficiencies play a role in determining the behaviour of citizens across jurisdictional boundaries.

19 Unitary political systems are characterized by the dominance of a central (national) government, which has complete sovereignty and jurisdiction over the state as a whole. 20 Alternatively, many economists see federal systems as inefficient. The existence of two orders of government can lead to the duplication of government services, let alone the duplication of the representative function of democracy (Triesman 2007).

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For example, along the border of Ontario and Quebec, families in the National Capital Region with young children may opt to live in Gatineau (Quebec) to access the province’s low-cost childcare services, moving back to Ottawa (Ontario) later in life to take advantage of the lower provincial taxes. There is also anecdotal evidence of representational efficiencies playing out in the case of modern land claim agreements, as individuals with more than one Indigenous membership have the option to choose which claim they will belong to.21 This issue came up during field research, as it related to the membership decisions of children of Gwich’in/Inuvialuit parentage, and children of beneficiaries of mixed Inuit parentage (the Inuvialuit claim vs. the

Nunavut claim). Based on informal discussions with land claims beneficiaries, there is at least some evidence that children with such parentage choose membership based (in part, and in the short term) on the land claim agreement that would better facilitate postsecondary education.

With respect to internal minority nations, representational efficiency can be increased through the creation of new institutions that address the needs of national populations within the broader polity. Institutions of self-rule or shared-rule can be created to provide new and legitimate avenues for political voice that operate within the pre-existing institutional framework.

Regional self-rule institutions exist in Quebec in Canada, Wallonia in Belgium, and Catalonia in

Spain, where the subnational governments represent ethno-national regions within the broader federation (R. Watts 1998; Agranoff 1999; Swenden 2002). Although there is a general view that the American federal system does not operate in this way,22 the United States has an established

21 Although there are limitations built into the land claims agreement regarding membership switching. For example, the Inuvialuit land claim stipulates that the decision to shift identities (i.e. from Inuvialuit to Gwich’in) must be made within ten years of enrollment, and that individuals opting to do so subsequently loses their entitlement to re- enroll under the Inuvialuit Settlement. 22 In a 2008 article, Alfred Stepan wrote that the United States is “sociologically diverse and multicultural,” however, since the country does not have “significant territorially based groups mobilizing claims for independence,” the United States is not counted as being multinational (Stepan 2008, p. 2).

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history of recognizing the internal independent nationhood of Indigenous populations, affirming self-rule through a tradition of acquiescence, if not outright support. Strong Indigenous national units have developed within the United States federal system, including the Mohawk Nation in the northeastern United States (which crosses the border with Canada) and the Navajo Nation in the western United States. Many of these larger Indigenous nations in the United States operate with a high degree of self-governance, running tribal courts, managing education, and directing local economic development. In this respect, when employing a lens that considers Indigenous groups as minority nations and considering related institutional arrangements, the United States can be viewed – in some respects – as a multinational federal system.

Representational efficiency, as a product of territorial self-rule, nonetheless faces important limitations. Institutions are considerably more static than citizens. While Quebecois may decide to move out of Quebec for economic, educational, or familial reasons, their ability to engage with their nation is immediately diluted by that decision (and it may have generational implications as children born outside of the Quebec nation may not identify as part of the national group). Similar issues plague questions of Indigenous membership and are conspicuously felt where the benefits accruing from membership are spatially constrained or whereby membership within a minority nation depends upon—or is enhanced by—residency status.23

In contrast to self-rule institutions, the creation of shared-rule institutions focuses on increasing the representational capacity of institutions by integrating minority national voices

23 There are several examples of residency requirements, particularly in the case of Alaska where tribal status often requires that an individual resides in the community, or intends to return to the community after a short period away. Similar issues have recently been raised with the allocation of membership in the new tribal organization—the Qalipu Mi’kmaq—in Newfoundland and Labrador. The points system utilized to determine tribal membership prioritizes residency as a characteristic of ‘belonging’. Meanwhile, other groups like the Inuit of Nunatsiavut allow beneficiaries living outside of the settlement area to claim membership and benefits.

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into central venues of decision making. There are many examples of such institutional development (or attempts at such developments). Although not a federal political system,24 New

Zealand has instituted mechanisms to ensure that the concerns of the Maori, the minority

Indigenous national population, are heard on the national stage. The institutions are longstanding; the Parliament of New Zealand enacted the Maori Representation Act in 1867 that guaranteed a minimum number of seats in Parliament to Maori representatives.25 Meanwhile, one model of shared rule exists in the United States,26 where the State of Maine guarantees the inclusion of Indigenous nations in its legislature.27

In Canada, similar models have been attempted at different points in our political history.

In 1975, the Yukon Territorial Government proposed adopting a system similar to that of New

Zealand, calling for the creation of two voters lists—one a general list and the other for

Indigenous voters—in order to facilitate the election of Indigenous candidates to the Territorial

Council (Murray 1977). At the same time, it was proposed that at least one Indigenous representative be appointed to the Executive Committee, presumably from within the ranks of

Indigenous MLAs elected to the council. Similarly, the Charlottetown Accord, proposed in

Canada in the 1990s, attempted to build in mechanisms of shared rule with a proposal to include

Indigenous representation in the Senate Chamber, allocated separately from (and in addition to)

24 New Zealand operates under a unitary parliamentary system. 25 In 1993, the legislation was updated to allow for the number of Maori seats to vary based on the number of Maori registered to vote on the electoral roll (Niemczak and Jutras 2008). 26 Wisconsin, Virginia, and South Dakota have all debated models similar to that of Maine, and introduced legislation to this effect. To date, none of these bills has passed (S. Johnson et al. 2009). 27 In Maine, Indigenous peoples have had guaranteed legislative representation in the state legislature since 1866, when state legislation formalized the election of representatives from the Penobscot nation. Further legislation in 1927 extended representation to the Passamaquoddy. The Maliseet tribe also has a representative sitting in the legislature. However, in 2015, Maine Governor Paul LePage signed an executive order that rescinded a previous order that recognized tribal sovereignty and committed the state to consultation on all policy related to tribal issues. In protest against the new executive order, the Penobscot and the Passamaquoddy tribal nations withdrew their legislative representatives (Government of Maine 2017)

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provincial and territorial representation, and enshrined in the constitution (Charlottetown Accord

1992).

2.3 The Limitations of the Multinational Framework

National minorities are a particular kind of “problem” for the state. Not only do they assert claims for self-governance, they are able to make legitimate claims to their historic or traditional lands, which can threaten the territorial stability of the state. Indigenous leaders in both Canada and the United States have long asserted their nationhood, and since the Second

World War, their push for greater sovereignty and autonomy within the federal political system has increasingly been reframed within the framework of multinationalism (Cairns 2000; Cornell

2015). The multinational model of federalism holds that sub-state jurisdictions can be conceived of either as territorial units or as ethnonational units. Quebec can be conceived of either as a province (a territorial unit) under the classical federal view, or as an ethno-national unit, in which

Quebec is conceived as a nation (or a national group) within Canada. The ethno-national model can be extended to other internal nations, including Indigenous nations, and a few cases qualify under the blended classical/ethno-national federal model (Schertzer and Woods 2011). Like

Quebec, the creation of Nunavut can be characterized in either territorial or ethno-national terms.

Nunavut, as a constitutionally recognized territory within the Canadian federation that operates under a public government, satisfies the conditions of the territorial or classic model of federalism. Yet, as a conceit of the Inuit population in Canada, and as a mechanism for Inuit self- government, the territory can also be cast in ethno-national terms.

The creation of new institutions of self-rule or institutions of shared rule enables federalism to act as a mechanism for political development, through a process of federalization.

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Federalization28 refers to a process of institutional creation that increases the number of legitimate actors that have authority to act within a federal political system (Paquet 2014;

Broschek, Petersohn, and Toubeau 2017). In comparative historical analysis, federalization constructs political institutions as a mechanism by which to shift authority within a state, enabling the flow of state authority downwards to new territorially bounded institutions of governance.

As a theoretical framework that engages with the dynamic processes of political development, federalization helps to address several of the challenges associated with situating the Indigenous-state relationship within the literature of multinational federalism. Modern land claim agreements, and the institutions that have been layered on them since their implementation, are not traditional federal institutional constructs; they are not states, or provinces, or even territories. The models of governance that have developed to advance

Indigenous self-rule do not fit neatly into the pre-existing federal model, and the contemporary governance of Indigenous nations continues to fall short of the jurisdictional autonomy necessary to be considered independent internal nations. Moreover, not only is there considerable variation across and within the United States and Canada, many of the institutions created to assert

Indigenous sovereignty fall outside of what is normally considered part of the federal architecture, as Indigenous groups have used a combination of corporations, non-profit organizations, and government institutions to assert their political and policy authority.

28 It is important to note that the federalization literature in the United States stands in stark contrast to the understanding of federalization that I have presented above. In the US literature, federalization refers to processes of centralization, whereby the federal government increasingly inserts itself into policy areas thought to be the purview of the states. Representative of this approach, Lisa Miller characterizes federalization as the spreading of policy issues across all three—local, state, and national—policymaking venues, such that policy issues are addressed simultaneously by all orders of government (Miller 2008). In some ways, the two processes—whether centralizing in the US use of the term or decentralizing in the other use of the term—highlight a similar trend: one of growing governing complexity.

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Nonetheless, the new institutions of Indigenous governance are legitimate actors within the federal system. They have both a representational role, in organizing and responding to a collective polity, and a governance role in acting with authority within their newly recognized sphere of policy influence. For example, while the regional corporations of Alaska do not fit neatly into conceptions of federalism, their emergence in the 1970s dramatically enhanced the political voice of Alaska Natives. The corporations provided resources and were legitimate organizations through which Alaska Natives could voice collective opinions. Thus, while not part of a traditional federal system, the new institutions nonetheless are reflective of federalization as a process of political re-structuring.

Despite having consistently articulated their distinctness as peoples that possess sovereignty, territory, and the inherent right to self-determine their economic and political futures

(Steinman 2006), most internal Indigenous nations have not been granted the opportunity to make such large-scale territorial claims or to achieve far-reaching self-governing authority.

Within the contemporary federal political systems of the United States and Canada, most

Indigenous nations operate under a nested framework wherein nations are spatially located within several constructed boundaries—both at the national and at the sub-national

(state/provincial/territorial) levels. This contemporary institutional framework reflects a process of recognition by the United States and Canadian federal governments that has varied significantly throughout the political histories of the two states. In what became both countries, the earliest treaties with First Nations leaders explicitly supported Indigenous claims to nationhood. In the United States, treaties recognized Indigenous self-governance and Indigenous sovereignty, and “dealt with Indian tribes as international sovereigns, establishing diplomacy and making treaties when not in armed conflict” (Steinman 2006, p. 299). However, this period was

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relatively shorted lived, and as the settler government grew in military strength and economic power, treaties became more coercive and less favourable towards Indigenous nations (Spirling

2012). After the War of 1812, the United States government began to actively question “the propriety of considering the Indian tribes, no matter what their power, political organization, and sophistication, as sovereign nations” given its new “position of assured dominance” (Prucha

1994, p. 129). Throughout the 1800s, the legal framework of the Indigenous-state relationship was progressively undermined as the United States federal government ignored its treaty obligations, relocated Indigenous populations, and claimed traditional territories as federal lands.

The policies of the 1800s resulted in the widespread destruction of America’s Indigenous populations.

The same trends appeared in Canada; as Canada evolved as a nation-state, the treaty relationship with Indigenous peoples was progressively eroded, and policies became increasingly paternalistic and exclusionary. Among them, the Indian Act of 1876 defined the Indian in Canada and adopted parallel tracks of exclusion on the one hand, through population removal and reserves, and ‘enfranchisement’ on the other, through the attempted assimilation of Indigenous peoples into the broader Canadian population. In legislating the “Indian,” Canada failed to address its relationship with other Indigenous populations in Canada, namely the Métis and the

Inuit.29 Despite the exclusion of these populations from the legislative framework, for much of

Canadian history, the Canadian government continued to approach relations with these non- status Indigenous populations through a broadly similar set of policies, including removal and

29 Technically, in 1876 when the Indian Act was introduced, Canada did not own most of the lands upon which Inuit lived; Canada had purchased Rupert’s Land, encompassing northern Quebec and parts of eastern Nunavut, in 1871, however the British continued to control most of the northern territories until 1880 (Smith 1961).

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relocation, assimilation through residential schools, and a general failure to meet its responsibility to Indigenous peoples and governments.

State willingness to recognize internal nations and move institutionally in one direction or another depends on the combination of timing with structural and normative contextual elements

(Thelen 2000). For the United States and Canadian federal governments, the willingness to recognize Indigenous groups and their claims has seen two key periods in Indigenous-state relations. Across the many varied treaty-based or legislative frameworks for the relationship between the state and minority Indigenous nations in North America, the relationship eroded for the better part of 200 years and has only begun to reverse course since the end of the Second

World War (see Table 2.1).

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TABLE 2.1: Ideational Phases and Federal Policy

Governing Ideas US Federal Policies Canadian Federal Policies Phases of State Policy Bureau of Indian Affairs domination of reserves Indian Act (1876 - present day) (1870s-1960s) Conquered Peoples General Allotment (Dawes) Act (1887-1934) Removal (1830s-1850s) Wards of the State Reservation (1850s-70s) Failure to observe treaty promises

Cultural separation via the IRAϕ (1930s-40s) Disadvantaged Minorities / War on Poverty programs (1960s) 1969 White Paper to end “differentiated” status Culturally Distinct Assimilation through tribal integration (1940s-60s) Assimilation (1870s-1930s) Minorities “60’s Scoop” of Indigenous children to be placed in foster care Residential school system

Intermittent recognition of rights apart from tribal political status Indigenous Self-Rule (Individual) Legal Rights Attempts to extinguish treaty rights claims through the establishment of an Indian Claims Commission (1930s-50s) Holders (US: 1946-1978; Canada: White Paper) Termination (1950s-60s)

Business council aspects of the IRA (1934) Proposal to reconstitute land ownership as private Proposals to reconstitute tribes using corporate tribal ownership (1960s) Economic Self- Corporations / Institutional structures (1960s) Creation of regional corporations through Official Determination Form Creation of Alaska Native Corporations (ANCSA) Policy of Negotiation (1973) (1960s -) In All Fairness Policy (1981-1986)

“International” treaty relations (1776-1871) Administrative governance negotiable under the Tribes as “domestic dependent nations” (1831) Official Policy of Negotiation (1973) IRA Self –Determination and Education Act (1975) Section 35 of the Constitution Act (1982) Self-Determination / Sovereign / Quasi- includes administrative/governance institutions recognizes Indigenous and treaty rights Forced-Federalism Sovereign Governments Re-affirmation of the “government to government Commitment to Self-Government in the (1970s -) relationship” (1983) Charlottetown Accord (1992) Tribal sovereignty reaffirmed in 1995 Addition of Self-Government to the Official Policy of Negotiation (1995)

ϕIRA stands for Indian Reorganization Act of 1934 Chart adapted from Steinman 2006, Corntassel and Witmer 2013

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The break in the table highlights these two very different periods in the federal governments’ approach to internal Indigenous nations; each period reflects a different policy logic that defines the state response to Indigenous rights, powers and responsibilities (Steinman

2006). Beginning in the 1830s, a prolonged period of colonization undermined earlier nation-to- nation relationships that had been established through peace and friendship treaties, and which treated Indigenous nations as akin to international sovereigns. With an increasingly dominant central government, domestic federal policy progressively eroded and undermined this foundation through the confiscation of Indigenous lands and policies of assimilation. Following the Second World War, a new period of political development emerged that was increasingly rights-based (Cairns 2000). Throughout North America, Native advocates tapped into a civil society movement focused on political suffrage and civil rights and advanced their claims for self-determination.

Although the implementation of modern land claim agreements has come to be viewed as a highly imperfect policy approach, in the early 1970s, this was a major shift in thinking. The move to modern land claim agreements was premised on two foundational shifts in ideational principles: (1) that the claims being made by Indigenous groups were legitimate; and (2) that redressing those claims could be (or should be) done at a collective,30 rather than at an individual level. For much of the political history of Canada and the United States, there has been little to no willingness on the part of the state to cede power to internal Indigenous nations. Up to the

1960s, the degree to which Indigenous nations in Canada and the United States were treated as legitimate collectivities had been almost entirely eroded. The assimilationist practices and rights-

30 While the move to modern land claim agreements was premised on the legitimacy of collective claims and collective rights, this is not to say that the federal government truly recognized Indigenous groups as legitimate minority ‘nations’.

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based approaches up to that point had attempted to break down Indigenous political and cultural collectivities in favour of liberal definitions of self. Even though federal recognition of

Indigenous sovereignty has since begun to swing back closer to Indigenous conceptualizations of nationhood, and government action has been taken to institutionalize Indigenous autonomy and rights to self-government, Indigenous nations have not yet fully realized the degree of political autonomy that they desire for themselves and efforts towards full self-determination continued to be constrained to "some limited form of internal political autonomy" (Papillon 2008, p. 34). As with the political goals of sub-national federal units—including those territorial units that are not distinctly multinational (i.e. public provincial governments)—there is a general acceptance that both Canadian and American efforts to recognize Indigenous rights fall well short of Indigenous visions of self-determination. Institutional creation to enable Indigenous peoples to fully and freely determine their political, cultural, and economic destinies has yet to be fully realized. Even for those Indigenous nations seeking negotiated settlements in 2018, options for autonomy remain constrained by the dominant society (Alfred 2005; Irlbacher-Fox 2009). Ultimately, the processes of settlement, and the creation of new institutions, represent a compromise between two very different visions: Indigenous populations were (and are) interested in wresting control—over land, resource development, health and social services, among other policy areas—away from federal and subnational governments and into models of self-government, while federal negotiators and government legislators were (and are) interested in pursuing the maintenance of policy control through the creation of public institutions (White 2002).

As a compromise between federal and Indigenous national goals, Indigenous sub-national autonomy continues to fall short of the requirements to be considered fully devolved units of governance. Of the six requisites of devolution identified by Cohen and Peterson (1999),

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Indigenous units of sub-national autonomy easily fit four: (1) the granting of specific unit corporate status; (2) the establishment of clear jurisdictional and functional boundaries; (3) the transfer of defined decision-making powers; and (4) the clear establishment of basic intergovernmental rules. The remaining two requisites—(5) the authorization to raise own-source revenues and (6) the ability to establish budgetary, accounting, and evaluation systems—vary considerably across sub-national governance institutions, and not all are strictly national or cultural in their formulation. For example, while the borough governments of the Alaska North

Slope and Western Arctic regions can raise own-source revenues through taxation, and are controlled by elected Indigenous officials, they are technically not indigenous governments.31

The fact that Indigenous sub-national autonomy falls short on these last two measures of devolved governance is unsurprising. Unlike states and provinces, usually imagined at constitutional conception or integrated into the federal system to fit within the existing frameworks, Indigenous sub-national autonomy as an emergent form of governance faces both practical and political constraints. Like all minority nations seeking greater self-governance, the relative power of Indigenous nations within the federal system places them at a disadvantage in the push for greater autonomy. Although Indigenous nations may be addressed within constitutional frameworks, and while they may have a legal framework for self-governance provided by treaties, they have few mechanisms by which to independently push for greater autonomy within the federal institutional system. Key among the constraints facing Indigenous nations is their relative negotiating power. Here we can draw parallels between the processes of federalization, and the processes of democratization. Munck (1994) argues that: “to say actors have choices does not mean that outcomes are random or that actors are equally likely to pick

31 See further discussion on the borough governments in chapter four page 135.

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any set of potential institutional designs. Probably the primary factor explaining the shape of emerging institutions is the relative power of the actors involved in the process, the rulers and the opposition” (p. 370). Even in the case of modern land claim agreements, the most recent articulation of the Indigenous-state relationship, the negotiating power remains largely vested in the federal government. Unlike other national minority groups, such as the Quebecois,32 most

Indigenous populations cannot push for secession. Indigenous nations tend to be much smaller, and have fewer resources at their disposal for lengthy negotiation processes (Alcantara 2007).

The North American native population is diverse and widely dispersed, and varies wildly with respect to the size of the nation, all of which can undermine mobilization efforts for federal recognition and an institutionally defined space within the federal context (Papillon 2012).

Moreover, under processes of negotiation, it is the relatively under-resourced Indigenous organizations that carry the burden of proof (regarding the legitimacy of the claim or the history of traditional use), and both the process and the political will of federal political actors limit the slate of institutional options. Institutional design outcomes are necessarily constrained and

Indigenous nations are forced to operate within a defined set of principles and with a select set of options (Howlett 2014).

The institutional promise of federalism has yet to be fully realized for Canadian and

American Indigenous minority nations, despite the significant jurisdictional autonomy permitted by the federal governments. Although state and provincial jurisdiction can be constraining, both

32 The Quebecois as regionalized national minority population intersects with the province of Quebec, such that the provincial government can act as a proxy to the national minority population. This allows(ed) them to facilitate a sustained political movement for secession from within the federal framework. Moreover, as a province, Quebec has a higher population, is more highly resourced and can make political and policy decisions that shape the production of nationalism (i.e. through creating myths and narratives, directing educational learning, and focusing resources on building a cultural community). Few Indigenous nations are similarly constituted or resourced to enable such political action.

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the United States and Canadian federal governments exercise significant control over the policy space of the Indigenous-state relationship. The United States Constitution sets out exclusive federal control over Indigenous affairs, declaring reservations beyond the jurisdiction of the states, and formally limiting the degree to which state governments could intrude on ‘Indian

Country’ (Steinman 2004). In Canada, the 1867 BNA Act (Constitution Act, 1867, section

92.(24)) states that the federal government is responsible for the management of “Indians and

Lands reserved for the Indians.” However, this jurisdictional clarity has, for much of United

States and Canadian history, operated to the detriment of internal Indigenous nations. Although both federal governments could revise their policy goals rapidly and with little interference from other orders of government, for most of United States and Canadian political history, the predominant ideational framework underlying federal decision making worked to undermine

Indigenous sovereignty. The ability of the federal government to unilaterally shape the

Indigenous-state relationship through federal policy meant that there were few barriers to restricting Indigenous rights, abrogating the treaty relationship, or making widespread changes to policy to the detriment of Indigenous citizens.

Political legacies, the balance of interests and power, and normative considerations all factor into the potential outcomes available to Indigenous nations operating in the federal context. Nonetheless, Indigenous nations in both the United States and Canada are distinct nations that claim territory and continue to mobilize claims for autonomy. Indeed, as the federal political framework has become more open to integrating federal principles into the relationship between the state and Indigenous nations, some Indigenous groups have quite successfully translated their claims for autonomy into substantive power and authority, in the form of regional units of sub-national governance.

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Since the earliest days of colonial settlement, Canadian and American political attitudes regarding the legitimacy of Indigenous groups as minority nations have undergone several dramatic shifts. Federalization is only the most recent tool used to manage conflicts within a multinational state, as a means to solve the problem of national minorities (Jackson-Preece 1998;

Schertzer 2008). For much of their histories, the United States and Canadian federal governments dealt with their Indigenous populations in a fashion similar to European attempts at nation-building through population homogenization, attempting (in turn) to deal with the

‘problem’ through: (1) extermination, (2) separation, (3) assimilation, and finally, and only very recently, (4) recognition (Jackson-Preece 2005). Both Canada and United States federal policies have aligned with these evolving views in the management of the State-Indigenous relationship.

Colonial forces sought to eliminate national minorities through extermination, or by altering borders and/or relocating populations of Indigenous groups. Attempts at termination ranged from the introduction of disease to Indigenous populations and the “Indian Wars” in the United States.

Policies of separation moved the “Indian problem” away from the eyes of the settler populations through the creation of Indian reserves or the forced relocation of Indigenous populations within the territory. Policies of colonization and assimilation were pursued through the establishment of religious and residential schools, through the introduction of legislation that defined and discriminated based group identity, and through bureaucratic levers such as the ’60s scoop which removed Indigenous children from their families on the grounds of protecting their welfare.

Some of these policies remain as part of the institutional framework to this day, including the

Indian Act of 1876. Although the Indian Act has been updated over time,33 the policy itself is a

33 Reforms have included the removing conditions for the “enfranchisement” of Indigenous citizens—whereby individuals would lose their Indian status and become a Canadian citizen upon receiving a university education or

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relic of the broader colonial relationship (Morden 2016). Through such measures, the state sought to lessen identity-based divisions through active assimilation of national minorities into the larger fabric of the nation.

Thus, within the history of the Indigenous-state relationship, policies of recognition are a relatively recent articulation of an evolving ideational framework. Politics or recognition require the state’s acknowledgement that Indigenous claims to land and self-government are legitimate collective rights. However, even since the emergence of the new policy paradigm in the post-war period—one that is increasingly favourable to advancing Indigenous minority nations through the recognition of Indigenous visions of sovereignty—the institutional promise of federalism continues to fail to fully take hold. Institutional legacies and other political dynamics present within the United States and Canadian federal political systems intersect with the policy framework, and shape outcomes in important ways. Two key features of the United States and

Canadian federal systems have dampened the full realization of Indigenous political development: (1) shifting compacts within the federal political system, and (2) the asymmetrical nature of the Indigenous-state relationship.

2.3.1 Shifting Compacts: Jurisdictional Clarity and Intergovernmental Relations

The jurisdictional clarity of the federal government over Indigenous lands and the

Indigenous-state relationship is an important variable in determining how extensive the practice of Indigenous self-government and self-determination is in the contemporary federal system. As

joining a recognized profession, extending voting rights, and created a pathway for Indigenous women who had lost their status through past policies to regain their status in some cases.

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the political development of Indigenous peoples has advanced constitutionally and institutionally since the 1950s, the federal architecture has shifted, and states and provinces have increasingly asserted themselves and have challenged the supremacy of the federal government in the management of the Indigenous-state relationship. While the constitutional clarity over tribes’ status as sovereign nations has steadily increased since the 1970s through the recognition of treaty rights, federal jurisdiction over other parts of the Indigenous-state relationship has become increasingly muddled. Some subnational governments have actively worked to expand their authority over the Indigenous nations that reside within their territory. Meanwhile, the federal governments have downloaded aspects of federal jurisdiction onto states and provinces, creating ambiguity over which order of government has authority over Indigenous issues, and subsequently undermining the ability of Indigenous nations to self-govern.

One of the clearest examples of this muddled relationship between the federal government, subnational governments, and Indigenous nations is with respect to jurisdiction over land. In both the United States and Canada, the legal relationship between Indigenous nations and the land (as defined by Western legal traditions) depends on the intersection point of geography and history. In the eastern United States, the relationship between the federal government and subnational governments is akin to that of Canada, where the land and resources fall to the jurisdiction of the subnational governments (states and provinces). In both countries, federal ownership over lands in the provinces and the eastern states is limited to small tracts of federal national parks and Native reserves, over which the federal governments operate in a trustee relationship with Indigenous nations. For Indigenous nations seeking recognition and increased land rights in the provinces and eastern states, subnational governments have an

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important role to play in mediating that relationship and working with federal and Indigenous governments to address questions of land tenure, and environmental and resource management.

In the western United States (including Alaska) and in the Canadian territories, the relationship between the federal government, subnational governments, and Indigenous nations over the land is remarkably different. The territories have traditionally had very limited ownership over their land,34 and the western states have tended to own relatively small portions of their jurisdiction as compared to their eastern counterparts. For example, in the State of

Alaska, land ownership within the state is divided as follows: 224 million acres are federal lands;

105 million acres are state lands; and 40 million acres are Native lands (under the tenure of the

Alaska Native corporations formed through ANCSA) [Alaska Native Claims Settlement Act

1971].35

A second interesting feature shapes the governance landscape of the western United

States. Like Alaska, twelve of the western states36 began as territories, and their inclusion into the federal framework required disclaimer clauses that warn against state intrusion into the treaty relationship between the federal government and Indigenous nations, or into the management of

Indigenous lands (Wilkins 2002). While these disclaimers were not universally applied,37 several of the states that lacked such clauses later clarified Indigenous land rights through their enabling acts (which lay the foundation for statehood) and in their state constitutions. Alaska made

34 The territorial governments own small pockets of “Commissioner’s land,” and increasingly have administrative authority over lands. The Government of Canada devolved the administration of lands and resources to Yukon Territory in 2003, and to the Northwest Territories in 2014. 35 As late entrants into the federal political system, similar federal/state breakdowns of land ownership exist in many of the western states (for example, the federal government owns 85% of the land in Nevada, 61.6% of the land in Utah, and 45.8% of the lands in California) 36 The twelve states with disclaimers are: Wisconsin (1836); Iowa (1838); Oregon (1848); Washington (1853); Kansas (1854); Nebraska (1854); Colorado (1861); North Dakota (1861); Idaho (1863); Montana (1864); Wyoming (1868); Oklahoma (1890) 37 Territories with large Indigenous populations such as New Mexico (1850), Alaska (1854), and Arizona (1863) did not include disclaimers.

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reference to Native land rights in the Organic Act of 1884, in its Enabling Act (1958),38 and in its

State Constitution (1959) (Wilkins 1998).

On questions of self-government, however, the opportunity for subnational intrusion into the policy area is much more uniform, and states, provinces, and territories alike have begun to assert policy authority over their internal Indigenous nations. Following President Richard

Nixon’s public support for tribal self-determination in the 1970s, tribes throughout the United

States began to patch together a variety of governmental, corporate, and non-profit institutions through which to exercise their inherent sovereignty. These assertions of tribal sovereignty quickly created tensions with state governments. Questions arose regarding state responsibilities to the sovereign nations operating within their borders. Despite the ruling in Native American

Church v. Navajo Tribal Council (1959) that Indian tribes have a “status higher than that of states,”39 states have progressively acted as if they were politically and jurisdictionally superior to the tribal nations found within their borders. As described by Wilkins (1998), these aggressive assertions of state jurisdiction over ‘Indian Country’ are highly problematic as they “violate the doctrine of inherent tribal sovereignty, run afoul of the treaty relationship between federally recognized tribes and the federal government, damage the federally recognized trust doctrine, and breach the doctrine of federal supremacy in the field of Indian affairs” (p. 55-56).

38 The Enabling Act disclaimer reads: “The People and the State forever disclaim all rights to Indian land and to any land or other property (e.g. Fishing rights) held in trust but he United States. All lands and property under absolute federal jurisdiction, expect when held in fee simple title” (Wilkins 1998, p. 56). 39 This view of the authority of subnational governments relative to the Indigenous nations nested within their jurisdiction views treaties as a defining element of the United States federation. Treaties were (and are) an act of recognition of Indigenous sovereignty by the United States government. The treaty relationship is similar to that found in Canada, which was developed between the British Crown and Indigenous nations upon contact. The legal- constitutional framework provides the foundation for a type of “treaty federalism” in both countries (White 2002), however, the full potential of this relationship has been undermined by federal and subnational governments at various points in history.

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As the federal governments in both the United States and Canada have consistently underfunded Indigenous nations (Evans 2011, Beeby 2015), subnational governments have increasingly involved themselves in Indigenous social and economic policy including law enforcement, judicial responsibilities, and health and education. By the early 1990s most states had begun to advance more positive intergovernmental relations with Indigenous nations

(Steinman 2004). In the first half of 1992, state legislatures considered 291 bills that addressed tribal-state relations, with 106 bills enacted (Getches 1993, p. 122). The bills addressed several different issues including cooperative agreements on law enforcement policies, hazardous and solid waste disposal, the allocation of tax revenues, water rights, and economic development.

Since then, some states have moved resolutely into the arena of managing the Indigenous-state relationship. At least 34 states have an executive branch or office dedicated to Indigenous affairs, and 15 states have created legislative committees devoted to addressing Indigenous issues within their boundaries (Johnson et al. 2009, p. 25). In some cases, states have developed intergovernmental agreements or frameworks to support nation-to-nation relationships. One such agreement, signed in 2001 between the Governor of Alaska and 63 Alaska tribal leaders, recognized tribal sovereignty within the state (Johnson et al. 2009, p. 34)

Canada has also seen increasing disagreement over who owns the policy space on

Indigenous-state relations. The responsibility of the Crown to Indigenous peoples is primarily conceived as a federal responsibility, and many Indigenous groups see the federal government as the only legitimate government with which to negotiate or organize their claims against. While provinces have historically been reluctant to extend provincial services to Indigenous populations (particularly to status Indians as defined by the Indian Act), there is an important— and increasing—provincial role in managing the Indigenous-state relationship (Long and Boldt

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1988; Papillon 2012). The provinces have jurisdiction over education, healthcare, social assistance, and child welfare for the larger Canadian population; and while the federal government is expected to fund and support these services for Indigenous populations

(particularly status Indians), there are many questions about accountability and responsibility for

Indigenous populations that are not covered by the Indian Act (including non-status Indians,

Inuit, and Métis populations) as well as those who do not live on-reserve. The lack of clarity over policy responsibility has become an important issue, and the complex jurisdictional authority has created a tendency towards blame-avoidance (Papillon 2012). Nonetheless, the provinces in

Canada have begun to take up the mantle in a more consistent manner, addressing these policy gaps through the negotiation of bilateral (province—Indigenous nation) and trilateral/multilateral agreements (between province(s), Indigenous nation(s), and the federal government). At least

805 such agreements were negotiated between 1995 and 2014, dealing with a range of issues over land and resource management, social policy, public safety, and infrastructure (Papillon

2015).

These disagreements over the management of the Indigenous-state relationship have serious implications for both Indigenous citizens and for the assertion of Indigenous national authority. In 2007, the government of Canada adopted Jordan’s Principle,40 which was designed to ensure that First Nations children would not experience delays in their access to health care.

The principle sought to deal with jurisdictional disputes between the federal and provincial governments (First Nations Child & Family Caring Society of Canada 2014). Despite unanimous support for a parliamentary motion in support of Jordan’s Principle, the federal government has

40 Jordan’s Principle refers to Jordan River Anderson, a First Nations child from Manitoba born with complex medical needs. Jurisdictional disputes between the Manitoba government and the Canadian federal government over which order of government should pay for the boy’s in-home medical care kept Jordan in hospital for an additional two years, and he died at five years of age having never spent a day in his family home.

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continued to come under attack for deferring jurisdictional responsibility to provincial governments in areas of social spending, to the detriment of Indigenous citizens. Meanwhile, several provinces and territories (including the Northwest Territories, British Columbia, and the

Yukon) have failed to adopt the principle through legislation.

In the United States, the intrusion of the states into Indigenous-state relations has been cast as a process of ‘forced federalism,’ in which state governments have repeatedly sought to challenge the sovereignty of Indigenous nations and undermine their treaty relationship with the federal government. The most pronounced example of subnational intrusion into the management of Indigenous nations is in the realm of Indigenous economic development and gaming. In the United States, the Indian Gaming and Regulatory Act (IGRA) of 1988 has been a veritable lightning rod. Although it is the responsibility of Congress to regulate commerce for internal Indigenous nations in the United States, the IGRA muddied the jurisdictional waters by requiring that casinos be created through state-tribal compacts. Indigenous economic development through gaming thus requires input not only from federal and Indigenous officials, but also from state officials and the broader public (through referenda) (Steinman 2006). The subsequent use of gaming as a primary source of revenue for tribal governments has fed into the creation of ‘rich Indian’ stereotypes. This stereotype has subsequently made it easier for subnational political actors to undermine either Indigenous economic development efforts (on the one hand) or the premise of Indigenous nationhood (on the other). Kate Spilde (2000) writes that this institutional racism has manifested itself through the denial of Indigenous nationhood and self-determination via two arguments. The first argument used by state policymakers is that gaming has made tribes economically self-sufficient, and therefore they do not need sovereign rights to maintain their nations. The second argument invokes the notion that Indigenous nations

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that engage in gaming (or by proxy, resource development, or other economic activities) are less

‘authentically’ Indigenous, and thus have fewer rights to political independence and self- governance (Boxberger Flaherty 2013; Spilde 2000). These arguments are not benign; they have taken shape in state legislation limiting Indigenous economic activity (including gaming) as a source of Indigenous self-determination (Corntassel and Witmer 2013).

2.3.2 Institutional and Political Asymmetry in the Federal System

A second feature of federal political systems that influences the opportunities for

Indigenous political development is institutional asymmetry, in which some subnational units enjoy an enhanced level of self-rule and policy autonomy (Zuber 2011; Bednar 2011). Unlike nationally or culturally conceived boundaries, the territorial denominations of federal systems— states and provinces—are generally conceived of as symmetrical units of sub-national autonomy that are created at a singular point in time and embedded in state constitutions (Bednar 2011).

Where territorial and ethno-national boundaries coincide, federal systems may be able to adopt asymmetrical relationships. Institutional asymmetry within multinational federal states is often characterized in a positive light, as it speaks once again to the flexibility of the political system, and can act as a mechanism for the central government to address a set of specific political concerns articulated by a regional national minority (McGarry and O’Leary 2007). The benefits of asymmetry align with the larger goals of multinational federalism, namely keeping countries together at the expense of negotiating away additional pieces of the policy framework to some regions. This attempt at state maintenance can be particularly acute for regions that are culturally distinct, as federal governments give away policy authority as a means of undercutting political arguments in favour of secession. Regardless of whether territorial boundaries were established

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at state-creation or are products of an evolving relationship between a national minority and the majority, the resultant levels of autonomy afforded to internal minority nations are necessarily contingent on an evolving willingness of the state to devolve or decentralize power.

In the case of Indigenous minority nations, the evolving willingness of the United States and Canada to recognize the governance rights of their internal Indigenous nations has had significant implications for the asymmetry that is today embedded in the management of the

Indigenous-state relationship. The institutional asymmetry observable throughout the two federal systems is a function of the patterns and timing of colonial settlement throughout North America, reflecting geographic patterns of colonial settlement and temporally shifting state ideologies regarding the management of internal Indigenous nations. The asymmetry at play in contemporary Indigenous governance, thus, is not universally positive.

In Canada, historic treaties were signed in some regions and not others. Historic treaties did not fully penetrate modern-day British Columbia, Quebec, some parts of Atlantic Canada, the

Yukon Territory, and the Northwest Territories.41 The advent of the Indian Act of 1876 also kept certain Indigenous groups outside the primary piece of legislation that defined the framework for the Indigenous-state relationship. Although the Supreme Court of Canada clarified in 1939 that

Inuit fall under the framework of “Indians and Lands Reserved for Indians” in s. 91 of the British

North America (BNA) Act, the institutional relationship remains markedly different.42 Moreover, whereas early treaties—including those signed in the eastern portion of the United States—were generally more favourable toward Indigenous nations,43 clearly establishing Indigenous nations

41Although, some treaties did extend this far, including the Douglas Treaties covering parts of Vancouver Island, and Treaty 11 which includes parts of south-eastern Yukon, the Northwest Territories and Nunavut. 42 Lands were never held in trust for Métis or Inuit peoples, reserves were never established, and the governance models provided for in the Indian Act - such as band councils - were not recognized for Métis and Inuit populations. 43 The language of the treaties was favourable, but the actual implementation of the treaties was not.

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as sovereign and setting forth principles of nation-to-nation relations, as the process of nation- building moved westward, treaties became increasingly coercive.

The development of asymmetrical federal units is a process of recognizing the legitimacy of previously marginal political actors, but which differentially increases the authority of those actors within a federal regime. The institutional asymmetry embedded in the early policy actions of the two federal governments continues to be reproduced in the modern era. Since the introduction of Canada’s Official Policy of Negotiation in 1973, whether an Indigenous nation was an “Indian nation” under the Indian Act, and whether it was a signatory to a historic treaty, has set Indigenous groups in Canada on one of a few very different paths. Indigenous groups recognized as “Indian” under the Indian Act with historic treaties in place could utilize the policy of negotiation for specific claims only. Specific claims relate to grievances raised by Indigenous nations regarding Canada’s failure to meet its obligations under historic treaties, or with respect to the way in which the Government of Canada managed funds or lands.44 As such, Indigenous groups (First Nations) with historic treaties have generally been left out of the more generous land and resource model now available to non-treaty groups. By comparison, Indigenous nations—including First Nations, Métis, and Inuit nations—that had never before signed treaties were subsequently offered a more comprehensive set of options. First Nations group recognized under the Indian Act but without a historic treaty could approach institutional development through either the governance options of the Indian Act or through the settlement of a modern land claim (or some combination of the two). Meanwhile, Indigenous groups not recognized as

“Indian” could only advance their claims through the modern treaties process under the Official

44 Since 1973, over 1,200 specific claims have been launched against the Canadian federal government, of which 390 were settled through negotiation. As of March 2017, an additional 143 specific claims were undergoing assessment while 230 remain under active negotiation (Government of Canada 2017).

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Policy of Negotiation. The main (and possibly only) exception to this has been Treaties 8 and 11 in the Northwest Territories, which the federal government had failed to implement.

In the United States, the earliest treaties recognized internal Indigenous nations as akin to international sovereigns. However, as the Indigenous-state relationship and the legal landscape evolved, this view of Indigenous sovereignty was quickly undone. The status-quo policy soon became one that treated Indigenous nations as “domestic dependent nations” as described in

Cherokee Nation v. Georgia (1831), which cast the Indigenous-state relationship as being “that of a ward to a guardian” (Corntassel and Witmer 2013, p. 17). However, as in Canada’s North, the

Indigenous nations of Alaska stand institutionally apart from the Lower 48, as no treaties were ever signed with the Alaska Native population. This absence of treaties did not necessarily mean that Alaska Natives could not access the institutional processes set out for Indigenous nations in the south, however, the lack of a formal federal framework in the North created the space necessary for Alaska Native actors to push for a new paradigm of institutional creation (see

Chapter Three for details).

Since the introduction of modern land claim agreements in the 1970s as the new way forward in Indigenous-state relations, both the United States and Canada have institutionalized

Indigenous governing autonomy through a variety of institutional mechanisms. In the northern regions of Canada and the United States, Indigenous nations without historic treaties had the option of negotiating modern land claim agreements, which has sent Indigenous political development along a very different path than southern Indigenous nations.45 Since the

45 There are important differences between Canada and the United States with respect to the evolution of the Indigenous-state relationship. Today, the two constitutional relationships are very different, as Indigenous rights are enshrined in the Canadian constitution in ways that they are not in the United States. However, during the period of experimentation on modern land claim agreements (and legitimizing Indigenous claims to lands and resources in the north), Canada had not yet constitutionalized Indigenous rights. The Official Policy of Negotiation was instituted in

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introduction of modern land claim agreements in the 1970s, a host of new policies and institutions have been layered on top of the initial modern land claim framework. The resulting institutions reflect a temporally structured and asymmetrical system: Indigenous governance in the North (as a feature of the contemporary federation) ultimately exists on a continuum that has been informed by the sequencing and timing of negotiated or legislated outcomes (Scholtz 2006;

Alcantara 2007). Table 2.2 showcases the asymmetry that has become imbedded in the institutional system of northern Indigenous governance. The table highlights several different components of the contemporary governance framework in practice throughout the northern

United States and Canada. The table lists the regions with finalized modern land claim agreements, the extent of self-government, and the degree to which Indigenous nations are integrated into regulatory or wildlife co-management institutions (as marked by a check).

1973, nearly a decade prior to the patriation of the constitution and the inclusion of language recognizing Indigenous rights. Thus, for the purposes of understanding institutional development following a period of policy innovation, the United States and Canada are in fact quite similar.

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TABLE 2.2: Asymmetrical Outcomes in Settled Land Claims

Highest Governing Autonomy Land Claim Political Representation Shared-Rule Shared-Rule Finalized Regulatory Wildlife Northwest Territories First Nations & Inuit Tłįcho Agreement 2003 Indigenous Self-Government [R]46 ✓ ✓ Yukon First Nations Carcross/Tagish First Nation 2006 Indigenous Self-Government [R] ✓ ✓ Kwanlin Dun First Nation 2005 “ ✓ ✓ Kluane First Nation 2004 “ ✓ ✓ Ta’an Kwach’an Council 2002 “ ✓ ✓ Tr’ondëk Hwëch’in 1998 “ ✓ ✓ Selkirk First Nation 1997 “ ✓ ✓ Little Salmon/Carmacks First Nation 1997 “ ✓ ✓ Champagne and Aishihik First Nations 1995 “ ✓ ✓ Teslin Tlingit Council Final Agreement 1995 “ ✓ ✓ First Nation of Na-Cho Nyäk Dun 1995 “ ✓ ✓ Vuntut Gwitchin First Nation 1995 “ ✓ ✓ Alaska First Nations Sealaska Corporation 1971 Indigenous Self-Government [R] o ✓ Northwest Territories First Nations & Inuit Sahtu Dene and Métis CLC Agreement47 2012 Indigenous Self-Government [L] ✓ ✓ Inuvialuit Final Agreement 1984 Indigenous Corporation [R]48 ✓ ✓ Gwich’in CLC Agreement 1992 Indigenous Tribal Organization [R] ✓ ✓ Alaska Inuit Arctic Slope Regional Corporation 1971 Public Government [R]49 o ✓ NANA Regional Corporation 1971 Public Government [R] o ✓ Northwest Territories First Nations & Inuit Sahtu Dene and Métis CLC Agreement 1993 Indigenous Corporation [R] ✓ ✓ Alaska First Nations & Inuit Bering Straits Native Corporation 1971 IRA* Tribal Govts. [L] o o Calista Corporation 1971 “ o o Doyon, Ltd. 1971 “ o o Cook Inlet Region, Inc. 1971 “ o o Bristol Bay Native Corporation 1971 “ o o The Aleut Corporation 1971 “ o o Chugach Alaska Corporation 1971 “ o o Koniag, Inc. 1971 “ o o Ahtna, Inc. 1971 “ o o Yukon and Northwest Territories First Nations White River First Nation (YK) N/A Indian Act Band Govts. [L] o o Ross River Dena Council (YK) N/A “ o o Liard First Nation (YK) N/A “ o o Akaitcho Treaty 8 (NWT) N/A “ o o Dehcho Process (NWT) N/A “ o o Northwest Territory Métis Nation (NWT) N/A “ o o Lowest Governing Autonomy

46 [L] and [R] refer to local governance arrangements, and regional governance arrangements, respectively. 47 The Sahtu claim, while a regional land claim, allowed for the negotiation of community self-government. 48 Wilson and Alcantara (2012) argue that the Inuvialuit Regional Corporation has expanded its governing role; it currently operates in a government-like fashion in many respects, including acting as the primary political organization. 49 The boroughs are local political organizations that create a de facto form of regional Indigenous governance.

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The development of Indigenous self-government in both Canada and the United States thus embeds a considerable degree of institutional asymmetry. Within Canada, there are several examples of robust Indigenous governing autonomy in northern Canada, however, groups that have yet to finalize their land claims or self-governance agreements remain largely outside of the paradigm of either economic or political self-determination. Asymmetrical outcomes in northern

Canada are, at least in part, a product of timing. Among groups that have completed settlement processes, more comprehensive institutional arrangements correspond to a later date of negotiation. For Indigenous actors, learning effects, whereby actors learn from past processes50 and agreements, likely bolstered a ratcheting-up of expectations and outcomes. Moreover, as political norms and federal policies evolved over time (including an increasingly favourable common law interpretation of Indigenous rights in Canadian courts), the negotiating environment became increasingly advantageous to Indigenous groups engaged in the process. Indigenous nations which came later to the negotiating table were presented with a more comprehensive mix of governing authority, reflecting changes to the Official Policy, which expanded to include the negotiation of Indigenous self-government in 1995. By comparison, there tends to be less variability in the governing authority of Indigenous nations in Alaska, as the framework for institutionalizing Indigenous goals of self-governance has remained more rigid (see Chapter

Three for details). Nonetheless, some Indigenous nations have successfully exploited other mechanisms to increase their governing authority, including through the creation of regional

50 Learning appears to have taken place both within and across cases; both the James Bay Cree and Inuit, and the Inuvialuit, appear to have actively learned from the ANCSA processes (representatives from both regions went to Alaska to study the claim following its implementation).

-64- public governments (boroughs) that operate as de facto Indigenous governments due to regional demographics.51

The institutional asymmetry is a feature of northern governance and has significant implications for the political dynamics between Indigenous nations and the state. There are also important implications for the nature of the political relationship between Indigenous nations. On the one hand, the asymmetry speaks to the degree to which the federal political system is a dynamic and flexible institutional model, one that can (potentially) effectively respond to different minority nations, and their unique demands for political or economic self- determination. At least some of the asymmetry seen in the north can be attributed to the different perspectives, priorities, and politics of the Indigenous nations that have engaged in this process of federalization. On the other hand, the asymmetry results in governance inequalities that have the potential to undermine the institutional outcomes. The governance inequalities have emerged for a host of reasons, including differences in access to political processes, differential economic or political resources, and changing policy frameworks. Regardless of the source, these inequalities risk reinforcing existing sites of tension between Indigenous nations and the state, and opening new sites of tension between minority nations endowed with different institutional resources. As such, these asymmetries may fundamentally undermine the full realization of

Indigenous political goals.

51 The institutional development of the North is doubly puzzling as it runs counter to the larger comparative United States-Canadian case analysis. Whereas federally recognized tribal governments in the Lower 48 generally exercise significantly more autonomy and substantive governmental powers than their southern Canadian counterparts (Steinman 2005), the opposite is true in the United States and Canadian Norths.

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2.4 Conclusion

This chapter has provided an historical overview of the dynamics of the Indigenous-state relationship in Canada and the United States and outlined the ways by which policy and institutional legacies can shape the evolution of a multinational federal system. As a first step towards institutionalizing a new policy paradigm, the institutions of governance created through modern land claim agreements have broad similarities. Their implementation transferred collective fee simple title to regional corporations, giving Indigenous institutions control over land and resources. To further solidify the new institutional paradigm throughout Arctic North

America, Indigenous peoples also advocated for and worked to create other forms of regional organization. Regional self-government or the stretching of regional corporate institutions saw

Indigenous groups progressively claim policy areas or insert themselves into governance roles

(Alcantara and Wilson 2014). In Alaska, Native Regional Associations have become a primary vehicle for the delivery of social services, while in the northernmost parts of the state,

Indigenous political actors pushed to create regional institutions of public government, which operate as de facto Indigenous self-government due to regional demographics.

The persistence of the two institutional factors—shifting compacts and policy legacies— have helped to undermine the federal institutional promise for Indigenous nations and will continue to dilute and shape the politics of multinational federalism and the representational effectiveness of new institutions. Nonetheless, there has been a dramatic and foundational shift in the policy framework in both the United States and Canada, one that has reshaped the governance outcomes for Indigenous nations. The next chapter will review and highlight the ways in which political norms have shifted in important ways, making way for institutional creation to reflect the political goals of Indigenous nations.

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Chapter 3 – Institutional Innovation through Federalization

3.1 Policy Innovation in the Indigenous-State Relationship

Why did the American and Canadian federal governments shift away from the status quo to adopt an innovative policy framework for addressing the “Native problem” in the North? And why did both countries opt to undertake this shift in the late 1960s/early 1970s, rather than at an earlier time? The emergence of the multinational federal framework in the United States and

Canadian norths is founded on an ideational shift in the management of the Indigenous-state relationship. As highlighted in the last chapter, the 1960s and 1970s saw a shift away from policies that maintained federal control over indigenous lands. The new policy paradigm recognized Indigenous goals for self-determination. However, state officials were reluctant to engage in a wholesale paradigm shift, restricting policy change to mechanisms for economic self- determination and limiting efforts to achieve political self-determination.

This chapter argues that the United States and Canadian federal governments’ move to a new institutional instrument in the form of modern land claim agreements, though limited by federal interests, marked the first step in the institutionalization of the larger policy blueprint or paradigm of Indigenous self-determination. In making this argument, the chapter seeks to explain the conditions that enabled the emergence of the new paradigm, and why modern land claim agreements were the instrument of choice. In casting modern land claim agreements as the first step of institutionalization, the chapter also raises theoretical implications stemming from the intersection of policy paradigms within federal political systems: namely, are policy blueprints paradigmatic when their institutionalization is incomplete?

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The implementation of modern land claim agreements fundamentally altered the relationship between the state and Indigenous citizens. The subsequent evolution of local and regional Indigenous institutions of governance has dramatically reshaped subnational politics, structuring the contemporary relationship between the state and its citizens, between the state and internal Indigenous nations, and between the federal government and sub-national governments

(be they public or Indigenous governments). This chapter explores the early years of this period of policy change, utilizing archival documents and newspaper articles from the 1960s and early

1970s to trace the decline of the dominant policy paradigm in Indigenous-state relations and the bargaining over new ideas that led the way to modern land claim agreements implementation.

The chapter is divided into four sections. First, the chapter reviews Hall’s (1993) theory of paradigm shifts and policy change, contextualizing modern land claim agreements within that framework. The second section compares the United States and Canadian cases across the first two stages of paradigm shifts, highlighting common anomalies that challenged the status-quo policy model of the past. The cross-case comparison identifies three intersecting conditions that enabled the breakdown of the status quo: (1) the mobilization of a sustained protest movement;

(2) legal uncertainty that challenged the stability of the status quo; and (3) the ability of the single authority to push through policy change. The third section of the chapter highlights the attempts by the federal governments to reconcile the challenges to the old paradigm through stretching the old framework, testing new ideas, and ultimately opening the door to policy contestation through the enlargement of the policy community. Finally, the fourth section of the chapter argues that while jurisdictional clarity enabled the federal governments to rapidly implement the new policy paradigm through modern land claim agreements in the 1970s, institutional legacies inherent within the federal political system have stymied full

-68- institutionalization. Thus, only in the North—where there was a relatively institutional ‘blank slate’—has the new policy paradigm resulted in a fundamentally different form of governance.

3.2 Modern Land Claim Agreements: The First Step Forward in a New Policy Paradigm

In December 1971, United States President Richard Nixon signed the Alaska Native

Claims Settlement Act (ANCSA) into law. Two years later, in 1973, the Government of Canada introduced its official policy of negotiation and invited Indigenous groups to the table for the purpose of settling outstanding land claims, which, as in Alaska, would be premised on some combination of land and monetary settlement. Like ANCSA, which created the Alaska Native regional corporations, the Official Policy also set about to establish new institutions of

Indigenous governance.

ANCSA marked the first step in the institutionalization of a new policy paradigm in the

Indigenous-state relationship. In recognizing the legitimacy of Alaska Natives’ claims to their land, the federal government shifted clearly away from the policies of assimilation that it had advanced in earnest from the mid-1930s onwards. The legislation also moved away from the instrumental and ideational underpinnings that marked the Indigenous-state relationship in the

Lower-48. Through the implementation of a modern land claim agreement, ANCSA abandoned the trustee relationship that formed the basis of historic treaties, introducing a new model for governance that relied on the transfer of fee simple title (private collective land ownership) to twelve Native regional corporations and over 200 community corporations, and paying out nearly $1 billion in compensation. This shift was remarkable not only in form, but also in scale: the 44 million acres of land transferred under ANCSA is more land than is currently held in trust by the United States government for all other Indigenous nations in the United States. The cash

-69- compensation that accompanied the agreement was nearly four times the combined amount ever awarded to Native peoples through the United States Indian Land Claims Commission (King

2012). As such, ANCSA marked a clear departure from the previously dominant paradigm, under which the U.S. federal government had limited economic or land-based settlements through a general refusal to negotiate with Indigenous nations.

When Canada followed suit in turning away from policies of assimilation, it did so using very similar institutional instruments, moving in 1973 towards the settlement of Indigenous land claims through modern land claim agreements, in the form of modern treaties. As the United

States federal government had done in Alaska, the implementation of modern treaties in Canada recognized significant tracts of land as belonging to Indigenous nations through the establishment of collective fee simple title and included financial settlements to Indigenous populations. The James Bay and Northern Quebec Agreement of 1975, signed with the Inuit and

Cree populations of northern Quebec, transferred 3.5 million acres of fee simple land to the

Indigenous groups, guaranteed subsistence usage and shared development authority over an additional 37 million acres (lands reserved for Native use), and $225 million in compensation

(Gourdeau 2002). Meanwhile, under their 1984 agreement, the Inuvialuit in the Northwest

Territories received over 22 million acres of land within the Inuvialuit Settlement Region. While the majority of this title is for the surface rights, the agreement also transferred subsurface rights to approximately 3.2 million acres, as well as $170 million to the Inuvialuit over a 14-year period

(Inuvialuit Regional Corporation [IRC] 1984).

The implementation of modern land claim agreements in Alaska and Northern Canada marked the first step in the institutionalization of a new policy paradigm recognizing Indigenous self-determination. The move endowed northern Indigenous nations with institutional and

-70- economic resources, advancing a new type of economic collectivism. In so doing, this shift marks a critical juncture in the history of the Indigenous-state relationship in North America, signaling the adoption of a new policy paradigm that situated northern Indigenous nations within a process of federalization.

Peter Hall (1993, p. 279) defines a policy paradigm to be “a framework of ideas and standards that that specifies not only the goals of policy and the kind of instruments that can be used to attain them, but also the very nature of the problems they are meant to be addressing.”

Unlike the incremental first-order change that adjusts the settings of policy instruments, or the strategic action of second-order change in policy instruments, third order or paradigm change is marked by a radical shift in the terms of the policy discourse about the hierarchy of goals and instruments to realize them. Hall outlines a process of paradigm change that is triggered by policy anomalies: that is, unanticipated events or unexpected outcomes that cannot be explained by the ideas of the extant paradigm. In the face of anomalies, decision makers experiment and attempt to shore up the policy paradigm, making first- and second-order changes that stretch the extant paradigm to deal with the anomalies. When these efforts fail, and anomalies accumulate, both the legitimacy of the policy paradigm and the authority of those who uphold it erode. A period of policy contestation ensues, and the debate spills out to engage a larger policy community. Both the processes of experimentation and contestation expand the existing set of policy options on the table by bringing forward new ideas and elevating new political actors or policy communities within the policy conversation. Paradigm change occurs when those wedded to a new interpretive framework gain positions of authority. The institutionalization of the new paradigm solidifies the place of the new ideas and actors that became dominant during contestation. However, the institutionalization of the new paradigm can be expected to be

-71- prolonged; the newly dominant ideological framework becomes institutionalized only with the creation of new institutional structures to replace existing organizational or decision-making arrangements (Hall 1990).

Hall’s theory of paradigmatic change broadly aligns with the methodological approaches to the study of critical junctures, in the sense that he views paradigm shifts as abrupt changes in the dominant ideational framework. Whereas Hall is interested primarily in ideational change, scholars of critical junctures tend to focus more specifically on institutional change. Within a single case, critical junctures mark the end of a transition period away from the old policy paradigm, as signaled by the first steps forward in institutionalizing new sites of authority or new organizations within the political system; this shift is necessarily predicated on an underlying shift in ideas or norms regarding the organization of authority. Across several cases, the critical juncture marks a point of case divergence from its antecedent state of being (Slater and Simmons

2010). Capoccia (2015) defines critical junctures as:

An event or series of events, typically exogenous to the institution of interest, [which] leads to a phase of political uncertainty in which different options for radical institutional change are viable; antecedent conditions define the range of institutional alternatives available to decision makers but do not determine the alternative chosen; one of these options is selected; and its selection generates a long-lasting institutional legacy (p. 151). Capoccia divides the critical juncture into discrete phases that broadly align with Hall’s framework, but adds a few important elements to the framework. Capoccia draws attention to the fact that the emergence of new ideas and institutional alternatives is constrained by “antecedent conditions,” thus building some degree of path dependency into the framework. Thinking of policy paradigms relative to critical junctures also raises several methodological and theoretical considerations. Based on the definition of a critical juncture provided above, the conditions that favour a paradigm shift, and the implications stemming from the institutionalization of a new

-72- paradigm, can be explored both within- and across cases. Christa Scholtz relies on a cross-case critical juncture when she compares the United States and Canada’s national policies on

Indigenous peoples in her 2006 book The Emergence of Indigenous Land Claim Negotiation

Policies in Australia, Canada, New Zealand, and the United States. She points to the divergence of national policies as a critical juncture, parsing that where the United States opted against implementing a national policy of negotiation, Canada introduced such a policy in 1973.52

However—and particularly in federal political systems—the within-case critical juncture can complicate the national story. Within federal systems, this type of juncture/paradigm shift can play out in a few different ways: the federal government might adopt an asymmetrical an approach for a state or territory within its borders, applying a policy or framework that diverges from its national policy (as is arguably the case with ANCSA in Alaska). Alternatively, the federal government’s new national approach might have differential impacts throughout a federal system (as the case in northern Canada as compared to other parts of the federal system). This second type of within-case critical juncture holds important implications for thinking of paradigm shifts within the context of federal political systems. Can the institutionalization of a

52 Scholtz (2006) excludes Alaska from her analysis on the basis that ANCSA was a legislative process and thus not a negotiation. In making this determination, she cites the fact that, technically speaking, Indigenous groups in Canada can act as veto players in the negotiation (by virtue of the fact that they can walk away from the table). However, Scholtz’s reading of the Alaska land claim is problematic for two reasons. Firstly, while the United States did not adopt a formal policy of negotiation, and Alaska Natives were not ‘veto players’ in the process of settlement, Scholtz’s analysis undersells the degree to which Alaska Natives influenced the policy outcome. As this chapter will show, the Alaska Federation of Natives played a major role in lobbying and advancing the core model that formed the basis of the legislative act. Indeed, the two core elements advanced by the Alaska Federation of Natives—a provision of 40 million acres of land and $500 million cash payment—formed the basis of the final agreement, even though initially, “the state and federal governments [were] not willing to settle so high” (Carter 1969). Secondly, in labeling Canadian Indigenous groups as ‘veto players’ in Canadian modern treaties, Scholtz over-sells the power of Indigenous groups to change or adjust the process of negotiation in their favour. While it is true that negotiation can be stopped by the Indigenous group, the power dynamics of negotiation are such that there is little to no incentive to do so (Alcantara 2007). In a negotiation scenario in which Indigenous groups are better off under a settlement than under the status-quo of non-settlement, they have limited incentive to use their veto power as a means to force a change in practice. Nonetheless, there are some examples where Indigenous nations have walked away from negotiations, including the Carrier Sekani First Nations in British Columbia and the Kaska in the Yukon Territory (Alcantara 2007).

-73- paradigm shift be incomplete? Can a new policy paradigm be adopted differentially within a federal system?

While several authors subsequent to Hall have affirmed his model of ideational change, arguing that paradigm shifts are relatively sudden and dramatic phenomena, others have suggested that paradigm change can occur (and, indeed, is much more likely to occur) more gradually and incrementally (Howlett 2009; Peters, Pierre, and King 2005). Paradigm change may occur through hybridization, and does not necessarily require that the ideational framework dominant in the old paradigm be fully replaced by the dominant ideas of the new paradigm

(Oliver and Pemberton 2004). To the extent that only some ideas in an alternate paradigm are taken up by decision-makers—that is, there is only a partial paradigm shift—the alternate paradigm will not transform the policy space fully. Even so, ideational change that falls short of being a full-scale paradigm shift, having generated institutional change, not only reproduce steps toward the policy paradigm shift but also extend them through practices of governance. As such, the hybridization of paradigm change can emerge in one of several ways. Firstly, hybrid paradigms may emerge when several legitimate policies emerge, but no one policy emerges as dominant during the competition phase. Rather, these competing policies are combined through processes of institutionalization (Princen and 't Hart 2016). Secondly, hybrid paradigms can emerge when the ideas from competing paradigms are layered into the dominant paradigm, modifying the status quo through ideational adjustments to policy instruments rather than undertaking wholesale change (Oliver and Pemberton 2004; Kern, Kuzemko, and Mitchell

2014). Thirdly, hybrid paradigms can emerge when the remnants of the previously dominant paradigm refuse to fully give way as the new paradigm becomes embedded. While the legitimacy of the old paradigm is challenged, illegitimate institutions from the previously

-74- dominant paradigm may persist and impede full implementation of the new policy paradigm.

This latter model arguably exemplifies the experience of Indigenous minority nations in Canada and the United States.

Though ANCSA marked the start of a new policy paradigm in the United States, and subsequently in Canada, the shift itself is arguably incomplete; its institutionalization within the larger federal systems has been constrained, and the paradigm has only been able to truly take hold in the North where institutional legacies were substantially weaker. In the case of Alaska, the process of integrating a new territory into the federal political system raised a spectre of uncertainty—over the status of Alaska Natives and with respect to land tenure—that did not exist elsewhere in the federation. To deal with that uncertainty, the United States federal government adopted a very different approach towards Indigenous Alaskans. Although the United States federal government has progressively moved towards a nation-to-nation model of Indigenous- state relations, the government did not adopt a national policy of negotiation for Indigenous populations. Instead, it limited the institutionalization of the new paradigm to functional negotiations that set the Alaska Native population on a very different institutional and governance path as compared to Indigenous populations in the Lower 48.

In Canada, the process of moving to a new policy paradigm has meant different things for different parts of the federal system. Reflecting the variation inherent in the historic treaty system (as described in Chapter Two), the Official Policy of Negotiation was not applied equally. The more comprehensive approach—modern treaties—applied only to Indigenous groups that had never previously signed treaties (although the Dene of the Northwest Territories who were signatories to Treaties 8 and 11 were also allowed to access this process due to the failure of the federal government to implement those treaties). Meanwhile, those groups with

-75- historic treaties could launch specific claims, which were much smaller in their scope, and did not promise the comprehensive package of land, monetary resources, and new institutions of governance and policy authority. The result, for the most part, has been that northern Indigenous populations have diverged significantly in their governance as compared to southern Indigenous groups. In both cases—Alaska and northern Canada—modern land claim agreements abandoned the trustee relationship that remains the foundation of the Indigenous-state policy paradigm in the Lower 48 and Canadian provinces. Instead, the discourse of the new paradigm sought to determine certainty by including language that would require the signatories of modern claims to sign over all future claims to land rights and title in exchange for land rights over a clearly defined territory of autonomy.

While the United States federal government chose not to adjust its national policy, it diverged from its status-quo model with respect to land claims in Alaska (Scholtz 2006).

Compared to the policy applied in the rest of the United States, the federal government recognized and legitimized the land claims of Alaska Natives, taking part in a process of institutional creation. United States’ divergence with respect to its northern territory makes the case of Alaska much more like Canada than the rest of the United States Indigenous-state relations. This similarity between the cases is important, as it allows us to apply past theory- building frameworks that do not seem to hold for the United States (as a whole) to a part of its federal experience. In her 2006 book, Christa Scholtz argues that the decision to move towards a policy of negotiation (in the cases of Canada, Australia, and New Zealand - but not the United

States) was predicated on the combination of (1) federal uncertainty respective of Indigenous claims within the judicial branch relative to (2) the timing of increased or sustained Indigenous protest movements. Scholtz also points to the importance of changing societal views for fostering

-76- the policy change, echoing the findings of Alan Cairns (2000) in the Canadian case. Both conditions are present and apply in the case of Alaska, and as previously established by Scholtz, appear in the case of Canada. However, in ignoring the case of Alaska, Scholtz’s theories do not fully account for the common model of change utilized by both the United States federal government and the Canadian federal government in ‘renewing’ the Indigenous-state relationship. Nor does her work account for how both governments could rapidly (in an institutional context) respond to the changing political environment. Here, I suggest that a third factor—jurisdictional clarity—ultimately enabled the governments of the day to quickly shift policy instruments to reflect a changing logic underlying Indigenous-state relations to meet the challenge of moderating Indigenous political conflict in the 1960s and 1970s.

3.3 Undermining the Entrenched Paradigm

In the post-WWII period, the normative framework began to shift in favour of Indigenous autonomy (Cairns 2000). Indigenous activism became transboundary and international, gaining legitimacy and building political momentum. The civil rights movement in the United States offered a political space for American Indians and Alaska Natives to raise questions about their place within the American polity, and in Canada, Indigenous groups across the country engaged in protest and political mobilization. Many of the core normative arguments that were associated with the civil rights movement were readily applicable to the persistent political and institutional racism experienced by Indigenous populations. And, as the central governments attempted to address the political concerns of the northern settler populations—by integrating the territories into the federal architecture through the Statehood Act in Alaska and administrative devolution in the Northwest Territories and Yukon Territory—there was considerable, and well-founded, fear

-77- on the part of Indigenous peoples that their collective goals and their political rights would fall by the wayside. Moreover, political and public recognition began to focus more acutely on the failure of the existing policy infrastructure to address the needs of northern Indigenous populations, and the social and economic dislocation experienced by Indigenous populations in the North.

This section lays out the conditions under which the institutional architecture of the old policy paradigm crumbled. In the mid-to-late 1960s, both the United States and Canadian federal governments faced several ‘real-world’ challenges to the reigning government orthodoxy

(Howlett 1994). Both governments faced increasing uncertainty regarding the legal underpinnings of federal dominance in the North, as well as increasing political mobilization by

Indigenous groups in response to proposed resource development projects. These uncertainties undermined the economic interests of the federal government in the North, which aimed to capitalize on industry excitement over oil, gas, and mineral resource discoveries.

3.3.1 The Accumulation of Policy Anomalies in Alaska (United States)

Alaska represents a unique case within the American federal system. As a state, Alaska is relatively young. The territory was first purchased by the United States government from—what is today—Russia in 1883, and became a fully-fledged state in 1959. Demographically, the region is unique within the United States. In 1943, when the Army Corps of Engineers moved into

Alaska to begin construction of the Alaska Highway, the population of the territory was estimated to be 73,000, nearly half of whom were of Alaska Native origin. However, demographics began to change quickly as interest in the region grew, and as the Alaska Native population continued its post-contact decline (both in absolute and in relative terms). In 1950, the

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Alaska Natives had dropped to 26% of the population, and dropped again to 19% of the population at statehood in 1959 (Leask, Killorin, and Martin 2001, p. 4).53

Despite their decline in relative population, Alaska Natives nonetheless were a central political force within the state. Within the United States federal system, the state has the highest proportion of Native peoples, a fact that presented several unique challenges for the federal government as Alaska transitioned from a federal territory to official statehood. By the early

1950s, Alaska had a patchwork of local tribal governments, petitions for land, a handful of

Native reserves, and dozens of outstanding land claims which the federal government had not yet heard. Meanwhile, political control over the region was beginning to shift, as the statehood movement in Alaska took hold. Alaska’s history as a territory, and its undefined relationship with the Alaska Native population presented tangible risks to the political development of the region.

In 1959, the Congress of the United States passed the Alaska Statehood Act. As a part of that act, the state was allowed to select 103.5 million acres, or approximately one third of the federal domain (Anchorage Daily Times 1970). The Statehood Act was a major political win for the settler population of Alaska, as it faced considerable political pushback from southern legislators. Many viewed Alaska statehood as a fool’s errand, believing the region to be incapable of managing its own affairs politically or economically (Johnson 1956). The Statehood

Act also had some unintended consequences, and the ability of the new state to select lands under the act generated two key problems for the federal government. On the one hand, it highlighted the uncertainty over land title in Alaska and the responsibility of the federal government in

53 Since the 1970s, the Alaska Native population has rebounded significantly from its low of approximately 25,000 in 1910 (Leask, Killorin, and Martin 2001). While the relative share of Alaska Natives in the State remains around 15%, the Alaska Native population has grown to nearly 105,000 in the 2010 census (138,000 including those who identified as Alaska Native plus some other racial background) (Norris, Vines, and Hoeffel 2010).

-79- protecting Native land rights within the region. On the other (and reflecting the heightened concern that the federal government would fail to live up to its obligations to the Native peoples), Alaska Natives engaged in a prolonged period of organized political mobilization.

The Statehood Act intersected with a key part of Alaska’s history, exposing an important institutional fault line tied to the region’s inclusion in the United States federal system. As one of the newest states of the United States of America, Alaska was given the right to select federal lands for the state land endowment. Within the changing governance landscape, Alaska Natives knew that the process of state selections (combined land withdrawals by the federal government for development or for reservation) would see most of the Alaska’s desirable lands appropriated by state and federal governments, leaving little good land available for native settlements

(Anchorage Daily Times 1970). Already, a considerable portion of the resource-rich North Slope had been tentatively transferred to the state under the provisions of the Statehood Act (Carter

1969).

Alaska Natives wanted to pre-empt the inevitability of significant loss of their traditional lands. And, because the federal government had extended its responsibility over the Alaska

Native population when it purchased the territory from Russia, Alaska Native groups began to organize through existing ‘southern’ policy levers to protect their lands and their traditional title to those lands. To blockade a transfer of land from the federal reserves to the new state government, and to assert ownership over their traditional lands, Alaska Native groups submitted

‘Native possessory claims’ (otherwise known as ‘Native Protests’) to the Department of the

Interior, the federal department responsible for federal lands.

The first possessory claim filed by a native group was submitted on Oct. 6, 1961. Five years later, as of August 8, 1966, 22 protests had been filed to cover a total of 162,425,248 acres

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(Federal Department of the Interior 1966; p. 1). Unlike past possessory claims, the Native claims in Alaska were territorial and regional in their nature, rather than specific to communities. Yet, though unprecedented in their size, the claims themselves were a legitimate process by which individual natives or Native villages had received land title in Alaska in the past. However, while the process itself was legitimate, the protests were met with significant institutional stasis within the federal bureaucracy. Briefing documents by the Department of the Interior recommended that the secretary “reject the native claims or protests except to individual claims (native allotments, townsites)” (Federal Department of the Interior 1966; p. 1), arguing that the federal government should view the territorial nature of these claims as an illegitimate extension of an otherwise legitimate venue. As such, the status-quo option was the preference of the federal administration under President Lyndon B. Johnson, and discussions mostly revolved around pushing Alaska

Natives to submit claims to allotments that could be adjudicated at the individual level. However, around the same time (in August of 1966), questions were already being raised about the relative supremacy of Native claims over state selections, with a briefing note presenting the option to

“recognize the claims as previously filed under the Wheeler-Howard Act, hold hearings [via a

Court of Claims] and establish reservations and reject State Selections in those areas” (Federal

Department of the Interior 1966; p. 1, emphasis added).

By October 1966, the federal government had begun to move towards recognizing the legitimacy of Native possessory claims. Although incremental in its formulation, an early draft of a “Land Bill” had begun to circulate that would confer jurisdiction on the Court of Claims54 to

“hear, examine, adjudicate, and render judgment in any and all claims which the Indians,

54 The Court of Claims was an institution of the Federal Bureau of Indian Affairs that would hear claims to lands, and make recommendations about lands to be held in trust by the federal government on the part of Indigenous nations within the United States.

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Eskimos, and Aleuts of Alaska, or any tribe or band thereof, may have against the United States”

(Udall 1966; p. 1). Meanwhile, despite the legislative movement, Alaska Natives continued to assert their title in earnest. Through the latter period of 1966, and into the first few months of

1967, Native possessory claims snowballed. As the sun set on 1967, Alaska Natives had claimed title over approximately 290 million of Alaska’s 375 million acres of land (Brady 1967, p. 1).

Questions over land tenure, and the related political mobilization and protestation, were not the only tangible risks facing the United States federal government and the new state of

Alaska; in the mid-1960s, the degree to which the underlying legal framework would continue to favour government also became increasingly uncertain. While the Supreme Court had tended to favour the federal government in its decisions, Alaska presented a bit of a special case. In 1867,

Russia ceded Alaska to the United States via the Treaty of Cession and in exchange for

$7,200,000. As a territory purchased from Russia, the United States had a more tenuous argument that Native title had been fully ceded as the settler-Native relationship did not rely on the conquest or treaty model of the Lower 48. Moreover, the Treaty of Cession (1867) included language that would form the basis for Native title in the state. The treaty included language that extended the responsibility of the federal government over Alaska Natives, with respect to protecting their land rights within the territory. Article 3 of the Treaty held that the “uncivilized tribes” of the territory were to become wards of the state. In subsequent challenges, that relationship was upheld in the courts, and extended the federal responsibility to include the protection of Native property rights. In the United States v. Berrigan (1905), the court found:

“The uncivilized tribes of Alaska are wards of the governments. The United States has the right, and it is its duty to protect the property rights of its Indian wards” (Brady 1967; p. 2).

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When Alaska statehood came into effect, this uncertainty was further compounded. On the one hand, the federal government had a responsibility to protect Native property rights. On the other hand, there was little clarity with respect to whether Native title was ever ceded to the

Russians (who then ‘passed it along’ through the signing of the Treaty of Cession), or whether

Native title had been upheld as the territory changed colonial hands. What was clear was that the

United States had never entered a treaty-making process with Alaska Natives following the purchase of Alaska. In the years immediately following the transfer of the territory, the federal presence in Alaska remained quite limited, with only a smattering of scattered military posts. As such, hostilities remained low, and treaty making was not immediately necessary. Moreover, the ability of the federal government to make treaties had been significantly curtailed by Congress in

1871 through the passage of the Indian Appropriations Act, which removed the treaty-making powers of the president (Spirling 2012), and shifted that responsibility to Congress. While the

1871 act marked the steady decline of Indigenous rights in the United States more broadly, in the years between the purchase (1867) and the act of Congress prohibiting treaties (1871), no treaties were signed in the territory of Alaska. Thus, Indigenous title in Alaska was never formerly extinguished through treaty making processes as had happened in the Lower 48 (Spirling 2012;

Brady 1967).

The case of Indigenous title in Alaska became further muddied as acts of Congress and legal battles layered new interpretations upon old. In 1884, the Alaska Organic Act brought civil government to the territory and strengthened the federal protection of Native land rights. That legislation enshrined that:

Indians or other persons in said district (Territory of Alaska) shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them, but the terms under which such persons may acquire title to such lands is [sic] reserved for future legislation by Congress.

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Wilkins 1998, p. 68 Throughout the process of Alaska statehood and the blanket of Native protests over the state, the implications of both the Treaty of Cession and the Organic Act were actively debated, and by the mid-1960s, the legal landscape appeared to be shifting. Whereas early legal decisions (including

Miller v. United States, 1947 and Tee-Hit-Ton v. United States, 1955) favoured a reading that

Indigenous title had been extinguished through the Treaty of Cession, and the 1884 act did not constitute the recognition of Indigenous land title (respectively), Tlingit and Haida Indians v.

United States (1966) took an opposite position. In the Tlingit and Haida Indians v. United States decision, the court found in favour of Alaska Natives affirming that “the Indians had owned all of Southeastern Alaska by way of Indian title, and that this ownership survived the Treaty of

Cession, public domain laws, and laws of general application relating to homesteading, mining claims, etc.” (Brady 1967; p. 4).

The outcome of this case naturally exposed a major divergence in the legal opinions regarding the degree to which this reading of the Treaty of Cession could be applied to the whole of Alaska. While Alaska’s attorney general argued that the Tlingit-Haida decision came from an isolated case regarding a special act of Congress that expropriated lands for the Tongass National

Forest, Native activists and legislators adopted the broader view that this decision meant that

Alaska Native title had not been extinguished through the Treaty of Cession (or by subsequent legislation). For Native leaders and legislators, the case clearly came down on the side that “most of Alaska is today Indian Title land and has not yet been declared ‘taken,’ as was the Tlingit and

Haida Land” (William Hensley, as quoted in Brady 1967; p. 4). Nonetheless, the court decision clearly advanced the Native position that the Treaty of Cession did not terminate Indigenous title, and in the absence of treaties in Alaska, it increased the relative uncertainty about what land

-84- tenure in Alaska would look like if Alaska Natives continued to fight for their land claims through the judicial branch.

By the mid-1960s, the institutional framework propping up the status quo option in

Alaska was actively crumbling. Native possessory claims covered over three quarters of the state and introduced significant uncertainty with respect to both the land available for selection by the state government (from the “federal lands”), and the land available for private lease or sale for the purposes of development. Legal opinion was divided on who ‘owned’ Alaska, and the uncertainty had already begun to dampen the economic forecasts for the state. However, in this state of heightened uncertainty, one component of the land claims issue in Alaska was relatively clear, namely, who was responsible for ‘solving’ the problem: the United States Congress.

Thus, when the Secretary of the Interior, Stuart Udall, stepped into the policy fray in

1966, he did so by attempting to force the hand of Congress to address the issue of Native claims head on. Facing down the sizeable Native possessory claims, Secretary Udall opted to give

Congress ‘time’ to put forward a clear directive and to answer the question of otherwise unclear title, placing a land freeze on the state in December of 1966 (Block 1971). The land freeze was a recognition of the overwhelming demand that the Alaska Native protests had placed on the federal bureaucracy. Moreover, the action was enabled by the fact that while the State of Alaska

(and Alaska Natives) had begun to identify tracts of land for transfer, no transfer had yet taken place and the entire territory remained as part of the federal trust (thus, full control of the process could be maintained at the federal level).

The land freeze had wide ranging implications: it ceased all state selections of lands under the Alaska Statehood Act and it put a stop to land disposals and leasing for development purposes. Together, the freeze essentially drew to a halt an otherwise rapidly advancing

-85- economic development agenda in the state. While some politicians accused Udall’s land freeze as politically motivated, Udall maintained that he was legally bound to impose the freeze due to the congressional guarantee which declared that the Natives “shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them” (Udall

1967b; p. 1). He relied on the language of the Organic Act, which clearly stated that the future acquisition of land from Native Alaskans was to be “reserved for future legislation by Congress”

(Udall 1967b; p. 1). This clarity over which order of government ‘owned’ the policy problem was instrumental for action. It was Congress that needed to act, and Udall made clear that only after congressional action to address Native claims would the land freeze be lifted.

3.3.2 The Accumulation of Policy Anomalies in the Northern Territories (Canada)

The United States government was not alone in its attempts to reconcile and reimagine the Indigenous-state relationship; the Canadian federal government was also grappling with the

Indigenous “problem” in the 1960s. Despite the responsibility of the federal government to

Canadian Indigenous populations, up to the 1960s, there was no substantive or sustained engagement by the federal government with northern Indigenous population. In the mid-1960s

Canada did not even have a comprehensive bureaucratic structure to address the concerns of

Indigenous peoples. After the Department of Indian Affairs was dissolved in 1936, Indigenous affairs was managed in a piecemeal approach by the Department of Citizenship and Immigration, the Department of Mines and Resources, and the Department of Northern Affairs and National

Resources.

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By the end of the 1950s, the Canadian North was going through a shift in its political structure and system, and both the Yukon Territory and the Northwest Territories55 were facing a changing dynamic with the federal government in Ottawa. Since their inclusion into the federation in 1870, Ottawa had managed the affairs of the northern territories. However, new calls for democratic accountability in the North pushed federal politicians to seriously explore increasing the political power of northern peoples through the administrative devolution of responsibility to elected bodies in the North. As in Alaska, Indigenous peoples predominantly populated the northern territories. Yet, as the political structures began to shift, political opportunities favoured the small settler populations. Throughout the northern regions of Canada,

Indigenous populations were beginning to press back against the longstanding federal policies that traded off between benign neglect and intrusive paternalism, protesting development projects and challenging the federal government on its failure to implement treaties.

In the Northwest Territories, the federal government made changes to the NWT Act in

1951, adjusting the composition of the Territorial Council to increase the representative capacity of the council. The changes to the act extended the council to include three elected members from within the territory (Dickerson 1992). This inclusion of democratically elected members was an olive branch to settler populations in the North, which argued that they were being denied adequate representation and thus their voice in Canadian democracy. However, the ‘democracy’ achieved under the 1951 amendment was disproportionately felt; the reforms favoured the northern settlers over the Indigenous population within the territory. The act created three electoral constituencies located within the Mackenzie Valley region, leaving the vast majority of

55 Recall that when I speak of the Northwest Territories during this period, it refers to the territory when it included what is today Nunavut.

-87- the territory unrepresented in the council. Not only did large swaths of the territorial population not gain representation, those who did were mostly the non-Indigenous population (as the creation of the constituencies within the Mackenzie Valley meant that the Indigenous-majority regions of the territory were excluded from voting). In addition to these administrative barriers to representation, other formal barriers also remained that impeded the political inclusion of the northern Indigenous population. Full voting rights were not extended to First Nations populations until 1960 (Dickerson 1992), and while Inuit were given the right to vote as of 1954, no electoral constituencies were added to the Territorial Council and the Central and Eastern

Arctic regions of the NWT (now Nunavut). As such, Indigenous peoples in the Northwest

Territories remained severely under-represented as political rights advanced for the settler populations.

In addition to the political demands of northerners, the federal government had a vested interest in the North in terms of resource development. Indeed, the Commission on Treaties 8 and 11 was a specific response to federal interest in the North. The uncertainty over land tenure made economic development more difficult, and the commission explicitly moved forward with its investigation under that framework. At each meeting with Indigenous communities, the commission highlighted that the rapid development in the Mackenzie District introduced a heightened urgency for the issue. It made clear that “the government felt that the matter of the land entitlement under the Treaty should be settled as soon as possible so that if the band wished to take up its land it should do so now before the best land was taken for development purposes by the numerous persons coming into the Territories” (Nelson et al. 1959; p.3). However, political and economic development continued to move ahead in ways that favoured the settler

-88- population. So, Indigenous activists sought out other venues for their participation in political processes and for the recognition and maintenance of their inherent rights.

In response to the systematic political discrimination seen throughout the North, and present in the formulations to increase ‘democracy’, northern Indigenous activism began to take shape through several organizations. The Indian-Eskimo Association (IEA) was the first to be established, in 1955, and focused on creating opportunities for First Nations and Inuit populations to advance their political goals. The IEA—an organization composed largely of southerners interested in facilitating the political rights of northern populations—had significant resources, including broad public support and national funding. This funding allowed it to support and facilitate pan-Canadian Inuit communication, ultimately leading to the creation of the Inuit Tapirisat of Canada (the ITC).

As an all-Inuit advocacy organization, the ITC had a mandate to represent the national voice of the Inuit of Canada, lobbying the federal government for increased political rights and for land rights based on Inuit claims to northern lands that spanned from the western Arctic through to Labrador. As ITC built on its political foothold, other northern indigenous activist organizations began to develop parallel to the ITC, including the Committee of Original Peoples’

Entitlement (COPE), the Yukon Native Brotherhood, and the Indian Brotherhood for the

Northwest Territories. Meanwhile, as the Alaska process moved ahead, it became harder for the

Canadian federal government to ignore the legitimacy of Indigenous claims to land in northern

Canada (Dosman 1975).

In addition to the organized political mobilization throughout the North, the federal government faced increased pressure to address the political concerns of northern Indigenous groups. The federal government faced a point of weakness with respect to the Dene of the

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Northwest Territories. The Dene had signed historic treaties with the federal government in the early 1900s; however, the federal government had failed to implement the provisions of those treaties. It did not set aside lands reserved for the Dene and it failed to live up to its financial obligations. In recognition of this failure, and in response to the political and legal pressure being applied by the Dene, the federal government launched the Commission on Treaties 8 and 11 in

1959, which travelled throughout the Northwest Territories to consult with affected Northern

Indigenous populations.

Throughout the 1960s, northern protest movements gained steam, tapping into the national Indigenous movement. In 1968, Dogrib56 leaders in the Northwest Territories boycotted the acceptance of treaty payments from the federal government; by the late 1960s, the Dene began to seek out legal options to challenge the federal government over Treaties 8 and 11; and throughout Canada, widespread Indigenous protest ignited in response to the 1969 assimilationist

White Paper policy introduced under Prime Minister Trudeau. As the risks to federal interests— both economic and political—increased in the North, the federal government held off releasing its policy document Canada’s North 1970-1980 for several years (until March 1972) to guard against creating “more dissent among the northern people” (Dosman 1975, p. 62). Nonetheless, northern Indigenous groups moved forward to claim their rights.

As in Alaska, the legal framework propping up a status quo option began to crumble as

Indigenous protest increased throughout the North, tapping into the national movement. In the parts of Canada where treaties had never been signed (particularly western Canada and the

North), Indigenous groups began to make legal applications challenging the government on its past failures to protect and recognize their rights in un-ceded traditional territories. As in the case

56 Today known as Tlicho.

-90- of Alaska, the federal government had a more tenuous legal hold over the lands where treaties had never been signed, as Indigenous nations had never ceded their territory in the post-contact period.57

The 1969 White Paper had highlighted Ottawa’s reluctance to engage with indigenous interests through the recognition of collective rights and indicated that Ottawa planned to move ahead with resource development without taking Indigenous claims to land seriously. By the early 1970s, the Canadian federal government faced legal challenges on several fronts. In the

North, the protests against Treaties 8 and 11—which had prompted a federal review—coalesced into a legal challenge. In 1972, the Dene of the Mackenzie Valley filed a caveat under the Lands

Titles Act. The challenge, mounted by Fort Smith Chief Francois Paulette and other chiefs, acted as an official notice that the Dene claimed 450,000 square miles of land (288 million acres) in the Northwest Territories, and worked to disrupt the construction of the proposed Mackenzie

Valley Pipeline. The Dene submission argued that while they had signed Treaties 8 and 11 (in

1899 and 1921, respectively), that act of signing did not constitute a surrender of Dene land.

Supreme Court Justice J. Morrow heard the Paulette case. Testimony heard at the preliminary hearings was consistent in that “most witnesses were firm in their recollection that land was not to be surrendered, reserves were not mentioned” (Paulette v. Canada 1973; p. 316-

317). Certainly, much of the testimony that informed the Paulette decision reflected the findings of the Review Commission on Treaties 8 and 11. When the commission reported its results to cabinet in 1959, it noted a high degree of incongruity between the Indigenous leadership and the framework put forward federal commissioners. The short report highlighted that in several

57 This assertion is made from a western legal perspective. Indigenous legal traditions clearly assert continuous use and therefore continuous title.

-91- instances “Indians who claim to have been present at the time when the treaties were signed stated that they definitely did not recall hearing about land entitlement. They explained that poor interpreters were used and these interpreters urged the Indians to sign [the treaties], saying “It will be good for you”’ (Nelson et al. 1959; p. 4). While the Paulette case was later dismissed by the Supreme Court of Canada in 1977 on a technicality, Justice Morrow ruled on preliminary testimony in September of 1973, finding that “there is sufficient doubt on the facts that

Indigenous title was extinguished” (Paulette v. Canada 1973; p. 390) and that the Dene chiefs had established a case for re-negotiating their Indigenous title in the Mackenzie Valley. Morrow determined that “Treaty 8 and Treaty 11 could not legally terminate Indian land rights. The

Indian people did not understand or agree-to the terms appearing in the written version of the treaties, only the mutually understood promises relating to wildlife, annuities, relief and friendship became legally effective” (Paulette v. Canada 1973; p. 390).

The federal government also faced growing judicial uncertainty in another case making its way through the courts. In 1967, Frank Calder and other Nisga’a elders in British Columbia sued the provincial government, arguing that Nisga’a title had never been extinguished. Like much of the northern territories, historic treaty making never made it to the western province, and Indigenous title within the province was uncertain. The Nisga’a claim to its land had been rejected by both the BC Supreme Court, and the Court of Appeals, and was heard at the Supreme

Court of Canada in 1972. While the Nisga’a lost their legal challenge in 1973, the threshold for establishing Indigenous rights was lowered. The decision was split 3-3 regarding the validity of the Nisga’a claim to traditional territory58, and the three dissenting judges held that:

58 The final Supreme Court judge dismissed the claim on a procedural point, finding that the Nisga’a had not received permission to sue the BC government from the provincial attorney general.

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Indigenous title does not depend on treaty, executive order, or legislative enactment but flows from the fact that the owners of the interest have from time immemorial occupied the areas in question and have established a pre-existing right of possession. In the absence of an indication that the sovereign intends to extinguish that right the Indigenous title continues. Dissenting opinion per Hall, J., Spence, and Laskin, J.J. in Calder v. AG BC (1973)

Though Calder ultimately failed at the Supreme Court, the decision was the first time the judiciary in Canada recognized the maintenance of Indigenous title from the time of the Royal

Proclamation of 1793. And, while this recognition was part of the dissenting opinion on the decision, the split on the court meant that this was not a decisive or clear win for the federal government.59

By the late 1960s, Indigenous politics in Canada were coming to a head, and the institutional framework propping up the status quo option in Canada was similarly crumbling away. The 1966 Hawthorn Report—commissioned by the federal government to better understand the goals of Indigenous populations throughout Canada—noted consistent and

“insistent political demands from the District of Mackenzie for increased measures of local autonomy” (“Commission Recommendations” 1966; p. 1). The relocation of the Government of the Northwest Territories from Ottawa to Yellowknife had changed the relative power of the settler populations in the North, vis-à-vis Indigenous populations. The newly empowered settler government, concentrated in the southern part of the territory, worried indigenous populations.

Legal battles were launched over the failure of the government to properly implement Treaties 8 and 11, and Indigenous groups began to organize against resource development projects and for

59 The judicial branch of government has been an important venue for Indigenous activists to drive ahead their claims for land and self-government. R. v. Paulette (1973) and Calder v. AG BC (1973) were a turning point in Canadian jurisprudence. Over the past 45 years, landmark cases have moved Indigenous land rights ahead. IN particular, Delgamuukw v. British Columbia (1997), saw the Supreme Court of Canada confirm that aboriginal title includes rights to land, not just the right to extract resources from the land. More recently, in Tsilqot’in Nation v. British Columbia (2014), the Supreme Court rejected the ‘postal stamp’ model of Indigenous title, and recognized Indigenous as extending to all the territory used regularly and exclusively by a First Nation.

-93- greater political representation in the North through new treaty processes. The Dene had staked a claim to over 288 million acres of land in the Northwest Territories, and a preliminary legal finding favoured renegotiation in recognition of legal doubts over whether title had been extinguished under the previously signed treaties. Moreover, by the late 1960s, the Government of Canada was facing more than just a northern Indigenous ‘problem’; a pan-Canadian

Indigenous movement had emerged in response to the Trudeau government’s White Paper.

As these two legal challenges made their way through the courts, the Canadian federal government began to develop an alternate strategy. By the spring of 1972, cabinet could no longer delay an official government response to the northern treaty claims. The government knew that in the absence of formal policy, any official government response to the Treaty 8 and

11 implementation failures by government, or any formal acknowledgement of the title claims being put forward in the Yukon and Northwest Territories, would mean revisiting Indigenous relations in the South (Scholtz 2006). Nonetheless, cabinet committed itself to moving towards a policy of negotiation.

Despite the explicit recommendation to dispense with the reserve model of the South

(Report of Commission 1960), the government continued to favour a model that largely followed the status quo policy. As with past policy, renegotiation would seek to set aside reserves, as intended under Treaties 8 and 11, with cash payments in the settlement subject to the Indian Act

(regarding the management of money as held in trust for the use and benefit of status Indians).

But in a small break from the status quo, the cabinet agreed that the bands would “be offered full possession of (or title in fee simple to) their homesites, that is the land and buildings which they now occupy” (Treaties 8 and 11 [Cabinet Document 521-72] 1972; p. 12). With the power vested

-94- in the federal executive, policy change could occur rapidly and unilaterally, and a proposal was put forward to revisit Indigenous land claims in Canada.

3.4 Policy Transition

As anomalies accumulated to place pressure on the policy status quo, and the entrenched paradigms fail to stretch far enough to address new and unexpected pressures, cracks emerged in the dominant framework that allowed for new ideas to compete for primacy. The transition to the new policy paradigm, however, was marked by considerable uncertainty. The recognition of the policy failure was incremental, and change could only be achieved as the structural elements that supported the existing policy framework began to crumble. In the wake of policy failure, new ideas began to emerge, the political discourse shifted, and newly empowered political actors could assert their influence on the policy process.

By the end of the 1960s, the changing nature of structural and societal forces meant that the status quo state preference of non-negotiation was no longer an option for either the United

States or Canadian federal governments. Indigenous groups in both Alaska and northern Canada had secured a place at the table in shaping the future of the north; in particular, the freeze on land disbursements in Alaska and the changing legal definition over Indigenous land tenure in Canada increased the relative power of Indigenous nations in the political conversation.

Pressure on the land question also increased with new discoveries of resources. In 1968, just over a year after the land freeze in Alaska had come into effect, significant oil reserves were confirmed in Prudhoe Bay on lands that had been selected by the state. However, with the land freeze still in effect, the state would continue to lose “several millions of dollars in rental income because of the [Department of the Interior’s] refusal to issue oil and gas leases due to the native

-95- protests” (Blair 1968). Meanwhile, in Canada, similar pressure was mounting through expanding exploration for oil and gas resources (Cowan 1968). But, with Native claims advancing in the

Northwest Territories, the implications for exploration and development were unclear.

Within the changing political environment—and with uncertainty increasing over the ability of the federal government to maintain the status quo—both governments began to update their policy preferences.60 As they did so, federal leadership was forced to contend with moderating the Indigenous-state conflict through the development of a new relationship with northern Indigenous nations. For both federal governments, however, what that new relationship was going to look like remained unclear.

While the advancement of northern Indigenous mobilization had benefitted from tapping into larger national movements, the northern policy framework would ultimately diverge significantly from southern models. Despite the clear need for a renewed relationship with northern Indigenous populations, the use of modern land claim agreements to create new political and economic institutions of Indigenous governance was not a foregone conclusion. At the start of the 1960s, this version of the Indigenous-state relationship was not on any political or policy agenda. Early attempts at innovation to address the Indigenous-state relationship in Alaska

60 For the most part, the key political actors engaged on Indigenous rights remained relatively static during the substance of the policy debate in both Canada and the United States. In Canada, policy change occurred under Liberal minority and majority governments (from Lester B. Pearson’s government, from 1966-1968, through subsequent majority and minority governments under Pierre Trudeau, from 1968-1979. The United States faced greater turnover in its federal political actors, though the substance of the policy debate did not begin to advance until after Nixon’s election in 1968. Similarly, there was a high degree of continuity in the leadership from Alaska: the state’s congressional representative, Howard Pollock [R] remained in Congress from 1967, while the state’s two Senate seats belonged to Mike Gravel [D] from 1969-1981, and to Ted Stevens [R] from 1968-2009. As well, while the governorship of the state did change hands partway through the debate, the state remained on the periphery of the policy debate occurring in Washington DC, though one prominent Alaskan, Walter Hickel, saw his relative influence over the policy space increase as he moved from the position of Alaska governor to the Federal Secretary of the Interior with Nixon’s election.

-96- and northern Canada were not the models ultimately adopted, and both governments attempted to build a policy framework within a highly uncertain and fraught political space.

As political actors faced the land question, policy failure was in the spotlight on a broader scale. The transition of the Territory of Alaska through the Statehood Act in 1959 brought considerable attention to the region, and to the massive social and economic gaps between the majority Alaska Native population and the growing settler population. Not only had no treaties ever been signed with the Alaska Native population regarding land or resources, there were considerable educational and economic gaps between Indigenous and white populations. In the mid-1950s, the average life expectancy was several decades shorter for Alaska Natives than for the broader population, and infant mortality was three times the national rate. Tuberculosis was rampant within the population, and employment prospects low (Notti 2001). In the Debates on the 90th Congressional Senate in 1968, Representative Ernest Gruening (who was at the time introducing an updated version of the land claim bill for review and debate), noted that:

We have a situation in western Alaska of extreme poverty. Its people have been referred to as living in a stone age. The closest parallel elsewhere in the Union is as I have stated in Appalachia. There are villages in which the housing is of the lowest possible standards. No plumbing, no sewage disposal, no running water, no economy, a diminishing food supply, as the formerly abundant fish and game steadily dwindles. Ernest Gruening (Congressional Record 1968, p. 1) While these issues were part of a much larger trend in Indigenous relations in the United States, the extreme economic and social dislocation was particularly pronounced with the Alaska Native population.

Meanwhile, in Canada, a similar period of policy reevaluation was occurring. Political eyes turned northward as talk of enhancing the administrative and policy position of the Yukon and Northwest Territories within the federation became more focused. The Canadian government

-97- had failed to properly implement the provisions of existing treaties in the Northwest Territories

(Treaties 8 and 11), and there was a growing interest in ‘solving’ or rectifying the social and economic gaps facing Canadian indigenous populations. Several commissions and inquests were struck—including the Commission on Treaties 8 and 11 that reported to cabinet in 1959 and the

Hawthorn Report of 1966—which looked specifically at understanding the persistent gap in the educational, social, and economic outcomes of Indigenous populations within Canada. With the public conversation growing over the place of these peripheral regions within the federal systems, and the persistent issues facing northern populations in both the United States and

Canada, it became increasingly clear that past policies had failed, and the Indigenous-state relationship needed new life. As talk of new models emerged, Indigenous and federal political leadership converged around a common site of agreement: that the trustee model of the South (as implemented through the policy of Indigenous reserves) had failed.

In 1968, President Lyndon B. Johnson addressed Congress, stressing that a new direction was needed for federal Indian policy. He proposed ending “the old debate about ‘termination’ of

Indian programs and [stressed] self-determination: a goal that erases old attitudes of paternalism and promotes partnership self-help” (as cited in Corntassel and Witmer 2013, p. 14). The

Canadian federal government noted its similar interest in reworking the relationship (Chrétien

2011). Yet, despite this commitment by federal leadership to re-visioning the relationship, federal political actors faced considerable uncertainty as they attempted to land on a policy prescription that addressed the changing ideational framework.61 Moreover, federal politicians were constrained by external factors, needing to balance the creation of a new policy to adequately

61 One of the Government of Canada’s first attempts, its 1969 Statement on Indian Policy (the White Paper) was a policy of assimilation.

-98- address the problems in the North with containing the potential impact of policy change for the relationship with Indigenous populations in the ‘South’.

In focusing on the reserve model as failed public policy, the logic underlying the

Indigenous-state relationship was disrupted in an important way. All previous policy had been premised on the role of the federal government as ‘protector’ (in highly paternalistic and destructive terms). Embedded in this relationship was the role of the federal government—for both the United States and Canadian governments—as the trustee of Indigenous land, and

Indigenous peoples as wards of the Canadian and American states. In broad terms, the trustee relationship is the foundation of the colonial past of North America, and both the United States and Canadian federal governments exercised the rights and powers of the state to the ‘benefit’ of

Indigenous peoples as a core principle embedded in historic treaties, in the United States and

Canadian constitutions (the BNA Act), and in the case of the U.S., in state constitutions (Wilkins

2002).

The principle of the trustee relationship was affirmed through the judicial branch of government. In both the United States and Canada, Supreme Court decisions upheld this historic view of the Indigenous-state relationship. In the 1831 Cherokee Nation v. Georgia decision, the

United States Supreme Court held the Indigenous-state relationship as being “that of a ward to a guardian” (Corntassel and Witmer 2013; p. 17), a decision further affirmed in 1886 in United

States v. Kagama with the ruling that “pronounced Indians to be wards of the state, further justifying federal control of reservations” (Steinman 2005; p. 765). Similarly, the Supreme Court of Canada affirmed in 1939 that the Indian Act “embodie[d] the accepted view that these aborigines are… wards of the state” (SCC Reference 1939), and expanded federal responsibility to include Inuit.

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However, this trustee relationship and the logic behind it in the historic treaties increasingly came under scrutiny in the 1950s. One of the first major rejections of the logic came through in the review on the unfulfilled provisions of Treaties 8 and 11 prepared for the Privy

Council Office in 1959. Although Treaties 8 and 11 had been negotiated, most of their core components were never implemented, including the reservation of land for Indigenous peoples

(and subsequently population separation) in the Northwest Territories. Despite the fact the treaties had included provisions for reserves in the Northwest Territories, the commission report denounced moving forward under the status quo, writing that "it would be unfortunate if the

Reserve System provided for in the Treaties is permitted to come into existence. It is of the opinion that Indian reserves belong to a past era in Canadian history” (Nelson et al. 1959, p. 5).

In taking this position, the commission made a clear move away from both the reserve model used widely in southern Canada and the trustee relationship that acts as the foundation of that model. The commission’s recommendation for renegotiation fundamentally re-worked the trustee relationship between the federal government and Indigenous nations. The cabinet discussion on this report, as summarized by the Minister of Citizenship and Immigration, noted that in addition to cash settlements and a share of resource revenues, “in lieu of land entitlement the Indians should be offered lots in the settlements which would be patented to the individual

Indians” (Report of Commission 1960, p. 10). The commission recommended the abandonment of the trustee relationship—in which the federal government holds collective lands for use by

Indigenous peoples—in favour of a move towards individual Indigenous property rights. In making this recommendation, the commission report appears to have taken the first step towards revisiting the logic of the Indigenous-state relationship.

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As commissions reviewed the failure of government to implement core provisions of treaties, or the absence of treaties altogether, Indigenous leadership across North America also began to argue forcefully against the paternalistic policy of reserve lands. In Alaska, the Native leader Emil Notti spoke against past policy, arguing that “[Alaska Natives] do not want to be forever wards of the Federal Government, and we are not willing to stand idly by and become wards of the State Government” (Notti 1967, p. 2). Federal political actors and Indigenous leaders alike began to converge around a limited consensus, increasingly adopting the viewpoint that the trustee model of the southern Indigenous-state relationship had failed. Indeed, it was posited as having further facilitated the economic and social dislocation experienced by

Indigenous groups, and needed to be reversed, or at the very least, not repeated.

3.4.1 A First Attempt at Innovation in Canada (1959-1969)

As the Canadian federal cabinet began to tackle the issue of renewing its relationship with Indigenous peoples in Canada, the trustee relationship came under increasing scrutiny and several new policy options were put on the table. The Canadian government faced increasing pressure to redress the claims of Indigenous peoples that it had failed to live up to its treaty commitments in the Mackenzie district of the Northwest Territories. In the late 1950s, the Privy

Council Office struck a commission to review the claims regarding the unfulfilled provisions of

Treaties 8 and 11 and provide options for moving the relationship forward. The commissioners visited fifteen settlements throughout the district, meeting with the leaders and members of sixteen bands (Nelson et al. 1959). Following its tour of the north, the 1959 commission report made the first move against the maintenance of the status-quo model of the Indigenous-state relationship in its final report to cabinet. Rather than proposing to implement Treaties 8 and 11

-101- through the original language of the treaty model (with land held in trust by the federal government), the recommendations advanced a slate of alternatives, including offering fee simple title to the Indigenous groups (for the land upon which they resided), a monetary settlement (of $20 per acre) plus hunting and fishing rights, and an annual payment of money as a share of resource revenues. The recommendations reflected a core element of the reported

"views of the Bands" that were articulated in the commission report. The first point made in the document highlighted the views of the Indigenous peoples of the Mackenzie Valley, namely that

“they definitely do not want to live on reserves" (Nelson et al. 1959, p. 4).

Other reactions and opinions of the Indigenous leadership in the Northwest Territories did not seem to have such clear consensus, with the result that the core recommendations of the commission appear to contrast with the perspectives advanced by northern Indigenous leaders.

While the commission recommended that the government move forward with a monetary settlement and fee simple title to redress past government failures, their report also noted that

Indigenous leadership showed a general lack of interest in acquiring land and mineral rights, and a mixed response to cash settlements. The commission’s report also noted that the Indigenous leadership was suspicious of government and the motives of government in reviewing the unfulfilled provisions so long after the matter was negotiated in treaty. According to the report, most Indigenous leaders seemed to take the view that their people wanted to continue to live in the manner they had been able to do so with little interference by government, and no restrictions on their hunting, fishing, and trapping rights (Nelson et al. 1959).

The commission clearly favoured a policy option that did not duplicate past policy of

Indian reservations, and the recommendations brought forward cabinet in 1960 favoured scrapping the reserve model in favour of a model in which Indigenous peoples “[would] be

-102- offered lots in the settlements which would be patented to the individual Indians, a cash settlement, and a share in the annual revenue derived by the Crown from mineral gas and oil resources of the District” (“Report of Commission on Treaties 8 and 11 for Setting aside

Reserves in the Mackenzie District” 1960, p. 10). Cabinet, however, did not seem satisfied with this model, and continued to look for alternative ways to settle the claim. Importantly, there were wide-ranging implications that would have emerged out of settling or renegotiating Treaties 8 and 11; cabinet was concerned that a settlement without having a broader framework in place would allow Indigenous peoples to litigate the other claims that would naturally emerge in the aftermath of a settlement.

In early 1962, the Minister of Citizenship and Immigration, Ellen Fairclough, was back in front of the cabinet recommending an alternative model: the creation of an Indian Claims

Commission that could assess Indigenous land claims in Canada on a much broader scale. Issues of treaty implementation and the failure by government to meet its obligations were not confined to the North; Indigenous claims throughout Canada highlighted examples whereby the federal government took lands without proper authority or compensation, or improperly used the funds held in trust on behalf of Indigenous nations. Despite attempting to create a catchall process that could respond to the variety of claims based on size and scope, cabinet members raised several concerns about the model. Concerns were raised regarding the level of control that the federal government would be giving up by appointing an independent commissioner and moving forward with an independent claims process. Cabinet was also concerned about how all- encompassing the venue could become, recommending that the terms of reference for the proposed Indian Claims Commission be “redrafted in more specific terms” to ward off wider interest (Indian Claims Commission; Proposed Legislation 1962, p. 4). Thus, by the end of 1962,

-103- the language of the bill had been watered down significantly and adjusted so that that any claims commission would have only an advisory role to government and require Parliament’s approval for its recommendations.

When the Diefenbaker Conservative government was defeated in 1963, the Indian Claims

Commission bill—along with proposed changes to the Indian Act that included band incorporation and Indian status for women following marriage—died (Leslie 2002). Yet, the new

Liberal government, under Lester Pearson, remained committed to a claims commission. In addition to the re-introduction of a Claims Commission Bill—Bill C-130, “An Act to provide for the disposition of Indian Claims”—the Pearson Liberal government also commissioned a study of the economic, educational, and political needs of Canada’s Indigenous population (Leslie

2002). Following first reading, Bill C-130 was sent to Indigenous organizations and bands for study. Meanwhile, in cabinet, concerns remained regarding the potential scope of a claims commission.

In 1965, new language was inserted into Bill C-130 to specifically exclude ‘Eskimo’ groups from participating in the proposed commission model. The reason for the exclusion is noteworthy. During a 1965 cabinet meeting, cabinet members articulated that the trustee model was not an appropriate model for the far North. In particular, “the proposed basis of dealing with the claims was related to the reserve system, treaty obligations and trustee concept, which [has] no counter-part in Eskimo affairs” (Indian Claims Commission 1965, p. 9). However, while the claims commission specifically excluded Inuit populations from participation in the proposed model, cabinet appeared willing to consider similar arrangements “if at some time in the future a sufficient number of Eskimo claims should arise which could not be dealt with through the ordinary courts” (Indian Claims Commission 1965, p. 9).

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In 1966, the results of the Hawthorn-Tremblay Commission were made public. Among its nine recommendations to government, the commission’s report highlighted the use of other forms of governance, particularly municipal government formats, as a way to move out of the shadow of the Indian Act. The report also recommended some sort of corporate model for economic development, to be blended with existing or new local Indigenous governments. The report’s final recommendation puts forth that:

(91) The local government functions and the function of managing Indian assets should be separated on an experimental basis in order to overcome the serious contradictions which the present blending of this duality of function entails. The Indian thus would have one status as a citizen of a local community and a separate status as a shareholder in the corporate assets of the band. Hawthorn Report, Vol. I, p. 20 (Cairns et al. 1966) The uptake of the Hawthorn-Tremblay recommendations was mixed. The federal cabinet was most interested in the recommendations on devolving responsibilities around Indigenous health, education, and welfare services to provincial authorities—a policy change that would become a cornerstone recommendation within the White Paper. Cabinet discussions in early 1969 committed the federal government to a policy aimed at devolving federal responsibilities to the provinces, noting that “Quebec had already taken steps to assume responsibility of the Indian population” (Indian Program 1969, p. 6). Nonetheless, the hope that other provinces were prepared to do the same was optimistic insofar as several provinces seemed reluctant to extend services to their Indigenous populations.

By comparison, the report’s recommendation that the federal government should treat

Indigenous citizens as “citizens plus” was roundly rejected. Concern that the language of the policy too closely resembled the idea of “citizens plus” is clear in the notes from cabinet meetings. In advance of the White Paper release, cabinet members grew concerned that the

White Paper frequently referred to Indians as having ‘special status’. In particular, the Minister

-105- of Consumer Affairs, Ronald Basford, was worried "that this might be interpreted by Indians as meaning ‘good’ rather than ‘different’” (Indian Policy 1969a, p. 13), and recommended the replacement of ‘special status’ with ‘different status’ wherever possible.

The rejection of this Hawthorn recommendation can again be attributed (at least in part) to government fears about opening the process to Inuit claimants, who traditionally fell outside of the Indian Act. The government continued to limit the scope of the Indian Claims Commission

(now embedded in the White Paper), excluding claims to title under the concern that “recognition of the Indigenous rights of Indians would immediately bring up the matter of Indigenous rights of Eskimos” (Indian Policy 1969a, p. 13). Moreover, these approaches carried with them an undertone of special status or ‘nation within a nation’ that Prime Minister Trudeau wanted to stay away from in the new policy approach (Indian Policy 1969a).

The Indian Claims Commission was established in 1969 by Order in Council. As the federal government's first attempt at responding to specific grievances regarding its failures to meet federal treaty obligations and to make recommendations regarding the adjudication of specific claims by Indigenous groups, its creation was reaffirmed within the White Paper. The commission was given the authority to convert reserve lands into private lands, and the policy instrument was to be broad enough to include the ability to adjudicate new land claims (on un- ceded land). In this respect, the Court of Claims option was not exactly an extension of status quo policy. Its inclusion in the 1969 White Paper tied the commission to a very different role, intrinsically tied to the federal plan to dismantle the Indian Act and move away from the practice of differentiating Indigenous peoples as separate or different from the general Canadian populations. Although technically distinct (from an institutional perspective), the inclusion of the commission as part of the highly problematic White Paper recommendations significantly

-106- undermined the legitimacy of the institution in the eyes of Indigenous leadership in Canada.

Though a commission was struck, and a commissioner named, the commission never really got off the ground as a venue through which to advance land claims.

From the perspective of the policy logic model, however, the White Paper was very much in keeping with the emerging ideational consensus on how to move forward on Indigenous-state relations. The policy was interested in ending the trustee relationship as the foundation of the legal relationship between the Canadian state and Indigenous peoples. However, the policy went well beyond this, as made clear in a cabinet decision document dated June 17, 1969:

The central purpose of the new policy thrust was to end Canada’s apartheid policy on Indians, to eliminate the special relationship of the Indians with the federal government, to repeal the Indian Act and gradually work towards the deletion of the constitutional reference to Indians. (Indian Policy 1969b, p. 9) Despite there being general points of agreement between federal and Indigenous leaders— including the view that the Indian Act was (and is) a highly problematic and colonial piece of legislation—the White Paper was widely rejected by Indigenous leadership. The policy itself was viewed as assimilationist, as it stripped away all differentiation of Indigenous peoples within

Canada. The then Minister of Indian Affairs, Jean Chrétien, was directed to highlight the differences between the White Paper policy and the United States’ own attempts at assimilation—to no avail. Meanwhile, the policy ran up against other practical difficulties, as provincial representatives balked at the idea of having some Indigenous policy areas downloaded to them and refused to participate unless or until “Indians were present at the negotiating table”

(Indian Policy Implementation [Cabinet Document 1007-69] 1969, p. 5).

As the White Paper failed, the federal government still had to contend with the Dene push over Treaties 8 and 11, and other Indigenous title claims where treaties had never been signed.

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Yet in 1969, the move toward modern land claim agreements as the new model of governance was far from being a foregone conclusion. Despite the national rejection of the White Paper policy, the underlying logic of the policy still overlapped with some of the core ideas brought forward by federal political actors and Indigenous leaders alike. The logic marked a dramatic shift away from the status quo of paternalistic state control and toward Indigenous land ownership. With a broad political consensus coalescing around the idea that the traditional trustee model of governance had failed Indigenous peoples throughout North America, new instruments of governance were put forward in fits and starts.

Throughout the 1960s, as the policy framework shifted, one idea repeatedly came to the fore: turning reserve lands into privately owned land. As the cabinet focused its attention on creating an Indian Claims Commission, the corporate model of governance was nonetheless repeatedly raised as a policy alternative throughout the political discussions. An early version of the corporate model first appeared in an official capacity in the 1959 Report on Treaties 8 and 11, and the policy option was raised again—and in a more substantive way—in the 1966 Hawthorn report. The Hawthorn report spoke at length about band corporations as a superior model for increasing both self-governance and opportunities for Indigenous peoples. The report argued that the development of band corporations separate from local governing Indigenous authorities offered widespread advantages. Indeed, the authors noted that “the advantages of this change seem to be overwhelming, and it is somewhat surprising that although the recommendations were initially made nearly a decade ago no action has been forthcoming to implement them”

(Cairns et al. 1966; p. 308).62 The corporate model advanced in Hawthorn is most closely linked

62 Notably, however, they followed up this recommendation pulling back somewhat in suggesting this model should be tried through experimentation as the authors felt “there may be certain disadvantages which have been inadequately canvassed and which can only be assessed in actual practice” (p. 309)

-108- to the model building out the Indian Reorganization Act of 1934 in the United States, which enabled some corporate organization under the act, and allowed bands to hold assets. In this vein, the Hawthorn report recommended incorporation as municipal governments, creating a local level organization to manage local resources and act as a tax base for the necessarily separate

Indigenous self-government.

Around the same time, an alternative model was presented to the Indian-Eskimo

Association as a potential way forward. Because they were not recognized under the Indian Act

(1876), the Inuit of Canada remained outside of the consultation process, and outside of the framework of the proposed Indian Claims Commission legislation. Thus, in 1966, author Fraser

Symington argued that the Inuit should shift their venue for self-determination away from the federal government, and instead use “the organizational form which [is]…most respected and most used by Canadian society: The Companies Act” (Symington 1966; p. 9). In particular,

Symington argued that it would be possible to create new forms of productive organization in the advancement of Indigenous economic developing, recommending the creation of an Indian

Company of Canada as an “instrument for self-determination and self-realization” (Symington

1966, p. 9). The model presented represents an important progression from the early ideas around individual land ownership. The national corporation model he proposed would distribute common (voting) shares to the Inuit shareholders, to ensure democratic franchise within the company. The model thus represented a highly corporatized version of the institutional model.

As outlined in the last section, the White Paper was the first attempt at undoing the trustee relationship with its plan to convert reserve land to private property, put forward an

Indian Lands Act that would give full land management to the bands, and set up the Land Claims

Commission to adjudicate outstanding land claims. With the rejection of the White Paper, federal

-109- policy makers continued to search for ways to advance the state goal of breaking down the trustee relationship. This goal was particularly salient in the North, where a model needed to be found that would assist in clarifying land title to allow for development. In relation to the North, the federal government had two clear objectives: (1) develop the North to the “benefit of all

Canadians;” and (2) to “provide the people of the North with the opportunity for full participation in the life of Canada, and…to raise the standards of living in the North” (Lewis

1966, p. 1). By the early 1970s, the Minister of Indian Affairs, Jean Chrétien, increasingly favoured a strategy of negotiation over one of non-recognition. In keeping with the break from past policy, Chrétien proposed a negotiation process that allowed the government to offer some combination of fee simple land rights, financial compensation, and future resource revenues in the negotiation process. The cabinet agreed, and committed itself to the negotiation of

Indigenous treaty rights in the North and throughout Canada (Scholtz 2006). The Official Policy of Negotiation was introduced in 1973.

3.4.2 A Constrained Period of Policy Change in Alaska (1967-1971)

Unlike policy change in Canada, the timeline on policy innovation for Alaska was much more highly constrained by the political factors facing the United States Congress. The land freeze in Alaska, and the economic consequences stemming from it, put significant pressure on

Congress to advance the ANCSA legislation in a timely fashion. Despite these constraints, policymakers tackled a very similar set of policy options and ideas in the lead up to, and over the course of legislative bargaining.

Though political leaders and activists alike had begun to challenge the logic of the status- quo relationship between Indigenous people and the state, early attempts to settle the land claims

-110- in Alaska did not diverge significantly from past models. Following the decision by the Secretary of the Interior to freeze land disbursements in the State of Alaska, pressure quickly mounted to approve a Congressional bill to settle the land claims. However, while the Organic Act of 1884 clearly established that Congress held the legislative authority to clarify the relationship with the

Native people of Alaska, other interested political actors quickly entered the fray. The two earliest versions of proposed legislation in Congress came via Congressional representatives, but were in fact drafted in turn by the Secretary of the Interior (on behalf of President Lyndon B.

Johnson), and by the Alaska Federation of Natives (submitted to Congress by Representative M.

Gruening; Brady 1967; Congressional Record 1968). In each of these earliest versions of the bill, the vision for Alaska land claims did not depart significantly from the model defining

Indigenous-state relationships in the Lower 48. The bills put forward that either (1) a new administrative body (in Alaska) should be created to adjudicate claims within the state, or that (2) jurisdiction be conferred to an existing institution (such as the office of the Secretary of the

Interior or the Court of Claims in the Lower 48) to adjudicate land claims in Alaska and disperse lands. Both bills recommended that land dispersed be held in trust by the federal government or a designated trustee on behalf of Native nations. Both bills also received support from Alaska

Native leadership, who tended to prefer a model of adjudication but who were beginning to progressively move away from the trustee model that defined the Indigenous-state relationship in the Lower 48.

Early in the process, federal political actors continued to favour reserve-type models as the major recommendation. In Alaska, a 1967 draft bill recommended a model for settlement through the authorization of the Secretary of the Interior to grant Alaska Natives title to occupied village sites, and to additional lands surrounding those sites. However, in keeping with the logic

-111- of the existing relationship, the “title to the lands granted to a group of Natives may be held in trust for 25 years by the Secretary, by a trustee selected by the Native group, with the approval of the Secretary, or by the State of Alaska or other trustee selected by the Secretary” (Udall 1967b, p. 3). While the bill also allowed for Alaska Natives (as a group) to submit an action in the Court of Claims, so as to recover the value of additional lands to which they had laid claim, any actual dispersal of land would be limited to occupied village sites and surrounding areas and the value of the lands would be determined based on their value as of March 30, 1867—the date of the territory’s acquisition by the United States. The State of Alaska was generally supportive of this early version of the bill. But because it was still early in the process, the state had not advanced a clear policy proposal of its own (Boyko 1967).

Alaska Native leadership, however, disliked the 1967 draft bill that gave the authority to the Secretary of the Interior, preferring instead a model that would transfer jurisdictional authority to the Court of Claims, an institution that moderated Native land claims in the Lower

48. In the early days of the policy change, Alaska Natives believed that litigation via a Court of

Claims would be a more favourable venue to advance their land claims, expecting that the venue would result in considerably larger tracts of land for transfer. In response to the 1967 draft bill, then-president of the Alaska Federation of Natives, Emil Notti, wrote that "the land bill is in no way acceptable to Native people. We would like to have our day in court” (note: by ‘court,’ it appears that Notti means a Court of Claims; Notti 1967, p. 2). Alaska Native leaders actively lobbied and supported legislators in advancing a Court of Claims model of legislation (with

Alaska Senator Ernest Greuning, advancing such a piece of legislation in the Senate in 1967).

In the United States, while the status-quo option—the Court of Claims—was the cornerstone of early ANCSA legislation, by 1968, the ANCSA legislation began to align with the

-112- emerging ideational model of economic self-determination. The earliest drafts of the claims legislation put forward by the Alaska Federation of Natives in 1966 emphasized a Court of

Claims as the most legitimate process by which to advance Indigenous goals.63 The Claims

Commission, however, faced two core problems with respect to its political saliency: time and uncertainty. Alaska was operating under the auspices of the land freeze, which stalled economic development in the state, and the state could not secure a guarantee that land claims processes through the Court of Claims would speedily grant title. The commission option threatened to drag on for several years, if not decades, as decisions were made and re-litigated. The uncertainty that accompanied the option of the Claims Commission, however, threatened both actors in different ways. For the state, the commission option did not come with a guarantee that the land freeze would be lifted until after the commission had the time to do the work to allocate lands and resources to Indigenous groups. Concerns about how long the commission/litigation process would take, and what this would mean for the development of the state or the selection of state lands, made the option very unattractive for political actors at both the state and federal level. For

Indigenous groups, the Claims Commission option also posed some risks. In the short term, the land freeze gave Alaska’s Native leaders a key point of political and procedural leverage.

However, the commission option also did not guarantee that the land freeze would remain in place while the commission completed its work. In this scenario, Indigenous groups were facing down the prospect that the state would have 'first bid' on the 'best' land within the state, disadvantaging Indigenous groups in their eventual selection of land under the commission process.

63 Despite the shift in the preferred policy option, and the issues the Court of Claims raised in terms of feasibility, the Court of Claims option remained in the policy mix until well into 1971 (Gravel 1971).

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In the case of Alaska, the Lands Claims Commission was an extension of the status-quo option in a few key ways. Primarily, the commission would not have dismantled the trustee-like role of the federal governments. In either the case, a Land Claims Commission would have favoured litigation over negotiation as the future model, and any lands apportioned to Indigenous groups would have been held in trust by the federal governments for the benefit of and use by

Indigenous populations. In this way, the model replicated some of the core components of the reservation system so disliked by political elites and Indigenous activists alike (Notti 2001).

In 1968, Richard Nixon defeated the Democratic nominee, incumbent Vice President

Hubert Humphry in the presidential election. Nixon’s election presented several risks for the progress and outcome of the Alaska land claim; chief among them was the maintenance of the land freeze under the new administration. The Alaska Native leadership, and indeed the previous

Secretary of the Interior, believed strongly that this tool was necessary to push politicians into action. To that effect, prior to leaving office, Secretary Udall signed an executive order to transform the informal land freeze into law. Udall’s replacement, however, took a very different view of the land freeze. Following the election, Nixon nominated former Alaska Governor

Walter Hickel, who had fought against the freeze since its inception. Former-Governor Hickel continued to take an unfavourable view of the freeze. However, with his confirmation dependent on the Senate, Alaska Native leadership focused their lobbying efforts on disrupting the nomination process until Hickel relaxed his position that he would undo the executive order extending the land freeze. Given the flurry of activity over ANCSA under President Johnson, the

Alaska Federation of Natives (AFN) had established itself as an important lobbying group in

Washington and refused to support Hickel until he made clear his intentions for Alaska Native land claims. To speed along the confirmation process, Hickel promised to extend the land freeze

-114- until December of 1970, giving Congress time to act. With this commitment, the AFN endorsed

Hickel’s nomination, and the freeze remained in effect (Arnold et al. 1978).

Despite the inclusion of former Alaska governor Walter Hickel in the new administration, as political discussions advanced on models for change, the government of Alaska was largely excluded from the policy process. The State of Alaska roundly rejected the intrusion of the federal government into the Alaska economy via the land freeze; moreover, it faced few opportunities to engage in the development of the land claims legislation. To insert itself into the policy discussions, the Governor of Alaska, Walter Hickel, approached the Alaska Federation of

Natives about working together to develop a mutually acceptable bill. In January of 1968,

Governor Hickel convened the Governor’s Task Force on Native Land Claims, a group chaired by Alaska Native leader Willie Hensley (William Hensley 1968). The task force reviewed several existing recommended policies, building on a December 1967 draft bill by the Secretary of the

Interior that had begun to move the policy options away from the status-quo model of

Indigenous-state relationship present in the Lower 48 (Udall 1967a). Secretary Udall’s draft bill recommended a monetary settlement (rather than a land settlement), in which revenues would be apportioned “among corporations to be organized under the laws of Alaska for the purpose of promoting the welfare of Natives residing in the geographic region served by each corporation”

(Udall 1967a, p. 2-3). The Governor’s Task Force built on this model, highlighting the regional corporation as a potential policy instrument, but reasserting the importance of land as a central component of the final bill. The most marked step away from past policy, however, was the task force’s recommendation on how that land would be dispersed. The task force’s key recommendations were:

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1. 40 million acres of land in fee, or in trust, to village groups (allocated relative to villages

in proportion to population);

2. 10% royalty interest in outer continental shelf revenues, along lines proposed by

Secretary Udall;

3. 5% royalty interest in state selected lands; and

4. A terminable license to use surface lands under occupancy and use by Natives (i.e. for

subsistence use).

(Hensley 1968, p. 1)

Far from being definitive, the task force began to distance itself from the trustee relationship that marked the Indigenous-state relationship in the rest of the United States, opening the door to fee simple title. The task force made a few key recommendations that would persist in a variety of proposed bills leading up to the ANCSA settlement, and in so doing, had an enduring effect on the shape of the Alaska Native Land Claim.64

The institutional components put forward are notable. The task force put forward three classifications of corporations to manage the land and monetary resources flowing to Alaska

Natives: village corporations and regional corporations to manage land resources, and a statewide Native corporation to oversee dispersal of funds and address the social wellbeing of the

Native population (two of the three institutions were integrated into the final ANCSA legislation). The regional corporation, in particular, was highlighted as a strong potential

64 The relationship between the State and Alaska Natives was not always so positive. In 1967, Donald Wright, then- President of the Cook Inlet Native Association, wrote to President Lyndon B. Johnson accusing Governor Hickel of defaulting on his promises to the Alaska Native population. They accused him on reneging on his support of the Alaska Native claims, pointing to the state’s litigation over the land freeze, and the failure of the governor to equitably distribute funds to Alaska Natives to access State hearings on the progression of the claims. In so doing, it was the opinion of many within the AFN that “the State of Alaska has total disregard for the Native people and their rights in land” (Wright 1967; p. 1).

-116- mechanism for governance; the task force noted that “it appears desirable to strengthen the regional associations (regional corporations) as better and more effective leadership may be available at this level” (William Hensley 1968, p. 6). The regional corporations could be further strengthened through the merger of villages into the regional corporation, and no more than 20 regional corporations would be allowed (to prevent the dilution of the model).

The task force proposals were quickly integrated into the newest round of bills in front of

Congress. In 1968—the 90th Congress—five separate proposals sat before the Senate Committee on Interior and Insular Affairs. In contrast to the earlier models, four of the five bills in front of the Senate committee had abandoned the Court of Claims adjudication process and instead favoured some combination of grants of land, grants of money, resource-revenue sharing, and new management organizations as a part of a revised governance model (Wunnicke 1969).

Congressional hearings began again in 1969 but made little progress. The AFN actively rejected claims that it was a lack of Native clarity on the desired outcome that continued to stall the bill, countering that the State of Alaska refused to find common ground. As such, in media reports from 1969, AFN leadership clearly articulated that Alaska Natives were looking to secure 40 million acres of fee simple title (the State of Alaska supported only 10 million acres); 2% royalty on all federal and state lease and royalty revenues (unsupported by the state); locatable and leasable oil and mineral rights deeded to villages (supported in part by the State of Alaska); and the right to select alternative sites (unsupported by the state) (Zelnick 1969). Around the same time, Alaska’s two senators—Senator Mike Gravel (D) and Senator Ted Stevens (R)—began to propose a common ground, upping the monetary settlement (to close to $1billion), and splitting the land settlement along the lines of 10-12 million acres in fee simple title (surface and subsurface rights) along with surface rights to an additional 35 million acres (Smith 1969).

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However, by pulling back on the land provisions, the Senators’ bill faced criticism from the AFN, while Congress balked at the monetary settlement. By 1970, the corporate model was the dominant model advanced in ANCSA legislation at the Congressional, Senate, State, and AFN versions of the bill.

By the time the legislative bargaining process had reached its final stages, the bill advanced by Alaska Federation of Natives had evolved considerably. By September of 1971, the

House and the Senate were beginning to align more closely on their vision for the ANCSA legislation. While the ANCSA bill did not measure up to AFN’s final vision for the legislation, the AFN had steadily gained ground in the evolving proposals since the original task force recommendations. Throughout the legislative process, the AFN had come away with some clear

‘wins’. Their 1968 bill, which integrated much of the task force language, had moved the process away from Court of Claims proceedings and away from the trustee relationships with the state.

The 40 million acres of fee simple land was quickly taken up through alternative versions of the bill, and the monetary gains were considerable, though state and federal actors shied away from a percentage of resource revenues in favour of discrete numerical valuations. As the AFN made such gains, Native leadership naturally continued to push the goalposts further. In the final version of the AFN version, the proposal aimed for land and resources in the range of: 60 million acres of fee simple title (leasable and locatable mineral rights patented to regional corporations);

$500 million (over 9 years); and 2% perpetual resource revenues, among other lesser provisions

(Gravel 1971). However, the final ANCSA legislation did not ultimately move as far as Native advocates hoped for, and there were two particularly important deviations from the Alaska

Native vision: (1) the lack of a guarantee to subsistence usage or rights; and (2) failure to create

-118- non-profit corporations (either one statewide or 12 regional nonprofits) to manage the health and social security of Natives in Alaska.

3.5 Institutionalization of a New Policy Paradigm

While a mix of material and structural conditions pushed federal policymakers in both countries towards settlement with Indigenous nations, there was no consensus on the part of political leaders over how that settlement should occur. In both the United States and Canada, two alternative models ultimately floated to the top of the options list. The first—a status-quo model to establish a claims commission to adjudicate northern land claims—largely represented an attempt by policy actors to stretch the existing ideational and institutional framework of the dominant policy paradigm to meet the new challenges presented by northern Indigenous populations. The earliest versions of the claims commissions, in both the United States and

Canada relied on the maintenance of the trustee relationship, adjudicating land claims through existing or newly established administrative bodies.

This option proved untenable in Alaska and northern Canada, though for slightly different reasons. In Canada, the claims commission was intrinsically tied to the White Paper of 1969, which was roundly discredited by the Indigenous groups from across Canada (and tied the policy option to the fragmentation of authority, under Hall’s model of change). The White Paper policy relied heavily on liberal ideas of self, privileging ideas such as equality of opportunity and arguing against ‘differentiated status’. These ideas rans directly counter to Indigenous conceptions of collective rights, let alone their view of the foundation of the Canadian state which relied on treaties between sovereign Indigenous nations and the British Crown.

Meanwhile, in Alaska, the option of the claims commission was discarded primarily due to

-119- logistical considerations, during the contestation phase of policy change. The commission raised several partisan and political considerations, as it threatened to extend the process of claims adjudication and negotiation over a much longer time frame. This outcome would have had any number of spillovers into Alaska politics, with Native associations asserting a much broader political influence, and would have presented an ongoing challenge for Alaska statehood. In the meantime, new ideas had emerged from the Governor’s Task Force and were quickly taken up by the Alaska Federation of Natives as better reflecting the political goals of Alaska Natives.

Instead of extending the status-quo approach that would have embedded principles of federal control over Indigenous lands and monetary resources in the resultant settlements, the decision by federal actors to settle land claims through legislation and negotiation (in the United

States and Canada, respectively) pushed both countries over the threshold and towards a new paradigm of reduced federal oversight and increased Indigenous self-determination. Although modern land claim agreements largely bounded self-determination to questions of economic matters—integrating Indigenous nations into the modern economy through the transformation of

Indigenous nations into ‘owners’ of their land through the creation of Indigenous corporations— the spillover effects of this institutional instrument were much broader. With the implementation of modern land claim agreements in Alaska and (primarily) the Canadian North, both the United

States and Canadian federal governments began institutionalizing a policy paradigm that recognized the legitimacy of Indigenous claims to land and resources, and increasingly recognized the legitimacy of the right to self-govern.

As these two paradigms—the trustee model of federal oversight and the modern land claim agreement model of Indigenous economic self-determination—competed over the period of transition, several structural features of the federal political system enabled the relatively rapid

-120- shift to the institutionalization of the new policy of modern land claim agreements. Firstly, the clear jurisdictional (federal government) authority over the policy space allowed federal political actors to move quickly in response to changing political and structural pressures. The unambiguous constitutional division of powers created favourable conditions for policy innovation, as it established the policy autonomy necessary for one order of government to act without the interference of other governments.65 Although the policy community was enlarged during the transition period to include state and territorial officials, as well as Indigenous political leadership, federal actors ultimately directed implementation. This ability to act autonomously enables innovation by allowing governments to respond to their changing ideational frameworks without the interference of other orders of government, and it is an integral part of the story of modern land claim agreements in the United States and Canada.

Secondly, the institutionalization of the paradigm in Alaska and Northern Canada (which will be explored further in the next chapter) was aided by the fact that the North was a relatively blank slate. From a western institutional perspective, the paradigm shift of the 1970s—through the Alaska Native Claims Settlement Act of 1971 and Canada’s Official Policy of Negotiation in

1973—essentially marked the beginning of a formal governmental presence in the North. Prior to these developments, the Canadian federal government had failed to assert itself in any meaningful way in the northern Territories. Alaska—as a territory of the United States up until

1959—and the Northwest Territories up until 1967 were managed from Washington and Ottawa,

65 It is important to note, however, that innovation is not inherently good (from a normative perspective). As Hall (1993) argues, innovation emerges in response to shifting state goals, but the direction of the goal shift is not always a progressive move—it is equally likely to be a regressive move. The Indigenous-state relationship regressed over a period of upwards of 200 years. For much of United States and Canadian political history, shifting state goals meant progressively racist policies toward Indigenous peoples, including forced migration, residential schooling, and attempts at assimilation. Ideational shifts within the federal government drove these policy changes and undermined the advancement of Indigenous national goals throughout North America.

-121- respectively. Past federal Indigenous policy, moreover, had been only minimally implemented in the North. In the United States, the 1934 Indian Reorganization Act had penetrated unevenly into the region and, while it had some influence on local governance, no treaties were ever signed in the Territory of Alaska. Similarly, in Yukon Territory and the Northwest Territories, the Indian

Act did not apply to the large Inuit and Métis populations, and treaties that had been negotiated

(namely Treaties 8 and 11) had never been fully implemented.

3.6 Conclusion

This chapter has addressed two key components that underlie the policy paradigm shift in the Indigenous-state relationship that gave way to the creation of the modern land claim in the early 1970s. The chapter has highlighted the conditions under which the status-quo policy architecture crumbled for both the U.S. and Canadian federal governments, pointing to the mix of structural and ideational conditions for change. On the structural side, both federal governments faced a heightened economic (business and government) interest in northern resource development, increased uncertainty regarding the legal underpinnings of federal dominance in the North and increasing political mobilization by Indigenous groups to address the governance gaps and against resource development over concerns about Indigenous land rights. Meanwhile, on the ideational side, both federal governments were contending with a new mix of ideas that coalesced around the emerging consensus that the trustee model—a core feature of the ‘southern’ Indigenous-state relationship—was a site of policy failure. In this environment, the new model of modern land claim agreements was posited as a ‘new’ way forward in mediating the relationship between Indigenous peoples and the state.

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The negotiation and/or legislation of sub-national institutions of governance rarely results in a central government fully ceding policy oversight. This has been true in the case of the institutionalization of the paradigm of economic self-determination, and there is a general scholarly acceptance that both Canadian and American efforts to recognize Indigenous rights fall well short of Indigenous visions of self-determination. Rather than fully realized political autonomy—the right of Indigenous peoples to fully and freely determine their political, cultural, and economic destiny—Indigenous self-determination in the United States and Canada has been constrained to "some limited form of internal political autonomy" (Papillon 2008, p. 34). Newly created units of Indigenous governance are a compromise between two very different visions:

Indigenous populations have been interested in wrestling control over land and wildlife away from federal governments and into models of self-government, while federal negotiators and government legislators have pursued the maintenance of policy control through public institutions (White 2002). The process of institutionalization has occurred through the finalization of negotiated land claims, self-government agreements, and legislative acts, as well as through the creative use of ad hoc arrangements that result in informal institutional change.

Not only has this process of institutional layering resulted in considerable variation with respect to the ability of internal Indigenous nations to use these avenues to secure their political autonomy, it has also resulted in the creation of a wide array of institutions—including corporate, non-profit, public governance, and governmental institutional models. The next chapter explores the roots of this variation, exploring several dimensions that shaped the institutionalization of the self-determination paradigm.

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Chapter 4 – Explaining Indigenous Institutional Outcomes in the Northwest Territories and Alaska

4.1 Policy Change and Institutional Evolution in the United States and Canada

The introduction of the modern land claim agreements, documented in the previous chapter, reflected an underlying shift in federal political goals in both the United States and

Canada. The finalization of ANCSA and the introduction of the Official Policy of Negotiation marked a clear ideational shift on the part of government towards the recognition of Indigenous goals for economic self-determination. As this paradigm became embedded through the creation of new Indigenous corporate institutions, Indigenous political leaders continued to press for an enlargement of the paradigm to include governance organizations to enable political self- determination. Despite the cross-national similarities in the policy instrument used to address economic self-determination, the process of pushing for the enlargement of the paradigm has resulted in considerable divergence in the institutional landscape of Indigenous governance in

Alaska and northern Canada.

This chapter seeks to explain this variation in institutions of Indigenous governance in the two countries. To do so, I examine the period immediately following ANCSA in Alaska (in

1971), and the introduction of the Official Policy of Negotiation in Canada (1973) to assess the implications of the tool choice on the opportunities for the Indigenous political leadership to affect the dominant policy framework. Policy instruments, as defined by (Hall 1993), are the techniques or policy prescriptions used to advance specific political goals. In this framework, the modern land claim—which was a combination of fee simple land title, monetary settlement, and the creation of regional corporations to manage profits and land disbursements—is the policy instrument being utilized to advance the common political goals of federal political actors and

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Indigenous leadership (namely, settlement of land claims in a way that does not replicate the trustee/reserve model prevalent throughout Canada and the United States). In contrast to instruments, policy tools are the mechanisms of implementation (be they a legislative act, a rule making process, bureaucratic integration, or executive orders). Policy tools ultimately help shape and define the policy space, and, as will be demonstrated in this chapter, can operate to constrain opportunities for evolving institutions. By comparing across two cases, this chapter highlights how the flexibility of a policy tool can have important, long-term effects on institutional design and on the ability of minority political actors to advance their policy goals.

Since the implementation of modern land claim agreements in the early 1970s, the United

States and Canadian North have seen the emergence of highly diverse political organizations, models of citizenship, and institutional models aimed at addressing (or integrating Indigenous leadership into) policy areas that include health and social services, the environment, and resource development. Thus, the contemporary governance landscape in the North is marked by considerable diversity both in terms of the organizational structures created for Indigenous nations, as well as in terms of how new institutions have reshaped the formal relationships with the federal government. In 2018, Alaska Native governance is composed of 226 federally recognized local tribal governments, three federally recognized regional tribal governments, 13 regional corporations, close to 200 community corporations, eight non-profit native associations, two de facto Indigenous public governments, 84 local fish and game councils, six regional subsistence advisory councils, as well as a host of other federally recognized co-management committees on wildlife and land management. By comparison, in the Northwest Territories— which evolved institutionally along the same timeframe as Alaska—four modern treaties have been finalized that develop coordinated governance structures which link together corporate

-125- governance, Indigenous government, and co-management bodies under a singular institutional framework. Whereas Alaska has a mix of several hundred competing and overlapping institutions, the Northwest Territories has settled land claims in four regions (there are still areas with unsettled claims). In these regions, Indigenous governance is characterized by a high degree of institutional complementarity. While there is still considerable complexity embedded in the models of governance, with several institutions created for the purposes of co-management, regulatory oversight, corporate management of lands, and in some cases, institutions of self- government, there are few examples wherein governing roles are duplicated, thereby causing competition over assertions of authority.

Given the commonalities in the paradigm shift toward economic self-determination and the tool utilized to realize it (the modern land claim), the degree of institutional diversity is puzzling.

For Alaska Native groups and Indigenous groups in northern Canada, the goals that modern land claim agreements were employed to meet were consistent across borders. Indigenous groups wanted to solidify the state’s recognition of Indigenous tenure over the land, ensure their continued usage of the land by securing their hunting and subsistence rights, and increase their social welfare. Similarly, federal political actors had broadly similar goals in both Canada and the United States. Federal actors aimed to refashion the Indigenous-state relationship by moving away from the trust relationship embedded in southern historic treaties and facilitating the integration of northern Indigenous populations into the modern northern economy. However, while the modern land claim agreements included the creation of new governance organizations, primarily in the form of corporate institutions, they fell well short of Indigenous goals over their ability to self-govern and federal political actors were reticent to move in that direction.

The institutionalization of a new policy paradigm (in this case, the paradigm of Indigenous

-126- economic self-determination) is a long-term undertaking that shifts sites of authority, challenges long-standing and sticky institutional models, and has the potential to constrain future processes of policy change or institutional evolution. Yet, positive feedback loops that can reinforce or expand the paradigmatic shift can be stymied by other factors. Thelen (2000) argues against simple models of path dependency that look only at the moments of critical policy change

(critical junctures) and the reproductive sequences they push forward. She instead suggests examining how and when independent processes intersect to create moments of institutional innovation or conversion. Under theories of gradual change, political entrepreneurs can attempt to achieve change through alternative strategies, as not all avenues for change are equally accessible to policy actors outside of the dominant institutional framework (such as minority national groups). Indeed, we would not necessarily expect the institutionalization of the new

Indigenous-state paradigm of economic self-determination to exhibit self-reinforcing feedbacks and subsequent enlargement to include political self-determination. Even following the institutionalization of new sites of Indigenous authority, Indigenous political actors remained

(and remain) minority partners in the multinational federal system and are frequently only able to access avenues for institutional innovation from bottom-up approaches. Indigenous economic self-determination through modern land claim agreements came with large set-up and fixed costs. Moreover, in tying beneficiary status to Indigenous national identity, the benefits of the policy were constrained to a specific minority population, and thus were not necessarily felt by the public as a whole66 (Jacobs and Weaver 2015; Skogstad 2017; Patashnik 2003), reducing opportunities for wider public support despite a changing normative framework (Cairns 2000).

66 Although, one could argue that by settling the land question, the North became more open to development, thus satisfying the settler population in the North.

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As discussed in Chapter One, theories of gradual policy or institutional change highlight four potential avenues: (1) layering, which entails new elements being added to incrementally alter the function or impact of a policy/institution; (2) displacement, which entails the gradual replacement of old rules in favour of new ones; (3) conversion, which entails new purposes or function being informally attached to existing institutions; and (4) drift, which expands the existing institutional structure to fit new component parts (Broschek 2013), or represents the process by which policies end up having different consequences as a result of failing to be updated to take account of shifting contexts (Hacker 2005). Given their status as minority partners in institutionalization, only two pathways, layering and conversion, are directly accessible to Indigenous political entrepreneurs seeking to enlarge the policy paradigm in the face of a relatively closed or rigid political system and in absence of support from non-

Indigenous actors.

The process of institutional layering may be advanced through processes of venue shopping. Within a federal political system, there may be several other institutional opportunities for goal advancement, including through venues such as subnational legislation or the courts

(venue-shopping). The dispersal of political authority across institutions increases the number of points of access for political actors. Particularly in the case of Alaska, when Indigenous leaders were frustrated in one venue, they could try their hand within another political setting, bypassing central venues of change and layering in new institutional elements through processes of re- institutionalization (Simeon and Radin 2010; Karch 2009; Streeck and Thelen 2005).

Using process tracing, this chapter argues that institutional design decisions can have important effects on how paradigm institutionalization takes place by shaping the strategies available for minority-partner political entrepreneurs to affect change. In the case of Alaska, the

-128- implementation of ANCSA immediately transferred both economic and organizational resources through which Alaska Native leadership could defend, protect, and enlarge the policy framework.

Yet, despite their relatively stronger political capacity, the contemporary governance paradigm has become fragmented and a variety of institutions exist to advance the political and economic interests of Alaska Natives. This institutional outcome in Alaska reflects the strategy of venue shopping adopted by Alaska Native leaders in the face of a rigid policy framework (a legislative tool of policy change), which disrupted their efforts to enlarge the paradigm of self- determination to include political goals through the original site of change.

By comparison, northern Indigenous nations in Canada were invited to negotiate—a prolonged process that extended institutionalization of the paradigm of economic self- determination and delayed the endowment of Indigenous nations with economic and land resources. Additionally, the policy change occurred through a more flexible policy tool (an executive policy decision) concentrated in a single site of authority. The result, in the case of

Canada, was that the institutionalized paradigm was better able to integrate new political goals, normative frames or ideas. However, the process remained more tightly controlled by the majority-partner (the institutional incumbent, in this case the federal government), which affected the speed of institutional evolution and change. This intersection between the flexibility of the policy tool and the opportunity structure provided by federal political system is key to understanding divergent pathways of governance in Alaska and the Northwest Territories.

4.2 Shopping Around for a New Policy Paradigm: The Political Reverberations of ANCSA

In the period since the implementation of the Alaska Native Land Claims Settlement

Agreement (ANCSA) in 1971, Indigenous governance in Alaska has advanced along several

-129- parallel lines. ANCSA had an immediate impact on Alaska Natives. Implementation of the bill created 12 new regional and over 200 local institutions of corporate governance to manage the disbursements of the land title and the nearly $1billion monetary settlement flowing out of the legislative settlement. But the immediate and long-term implications of the newly created institutions were not clear. As corporate institutions, these new governance bodies were economic organizations primarily responsible to their shareholders—Alaska Native individuals who would benefit from the ANCSA settlement—and as such, largely fell outside of the institutional structure of the United States federal political system. Yet, as institutions that acted on behalf of Alaska Native peoples, the ANCSA corporations were newly empowered actors with both authority and legitimacy to speak on issues relevant to their communities. Thus, the

ANCSA corporations remained intrinsically tied to one part of the United States federal political system—Alaska Native groups as semi-sovereign nations within the federation. Regardless of their characterization, the institutionalization of these new, and economically powerful, regional corporations within Alaska strengthened the relative political power of Alaska Natives within the state and within the federal system more broadly. The institutional strength of the regional corporate model could be harnessed for increasing political gains and voicing the concerns of

Alaska Natives within the polity.

Despite the relative gains in institutional and economic power, Alaska Natives faced a new challenge to advancing their goals for political self-determination: ANCSA itself. The final

ANCSA legislation did not move as far as Native advocates had hoped, and several important components were missing from the legislation. ANCSA did nothing to support or reaffirm tribal sovereignty or self-government within the state, it failed to guarantee subsistence usage or rights, and it failed to create institutions to enable the self-management of health and social security

-130- services of Natives in Alaska. Indeed, throughout the four (plus) years of legislative bargaining,

Alaska Natives expected the ANCSA process would result in a sub-optimal outcome. Their access to the process was highly constrained, and they struggled to finance their participation in the process (Wright 1967). The inability of the process to address these three core issues was viewed as a fundamental failure of ANCSA. As negotiations for ANCSA came to a close, and with these considerations in mind, Alaska Natives began to seek out alternative policy mechanisms through which to advance their more comprehensive set of political goals.

As ANCSA plodded along towards finalization, it became increasingly clear that several of the Alaska Federation of Natives’ desired institutional outcomes were not going to make it into the final piece of legislation. One such ‘missing piece’ was the creation of the 12 regional non- profit corporations to oversee health and social service delivery to Alaska Native populations

(and to mirror the regional breakdowns of the for-profit corporations). This proposal was a clear attempt at increasing the authority of Alaska Natives to govern themselves. While the proposal had made it into some of the later versions of the ANCSA bill, as legislative bargaining came down to the wire, the proposal was dropped (Gravel 1971). In the absence of this institutional form, the Inupiat of the North Slope began to look for other options to increase their political authority.

In 1971, prior to finalization of the land claims legislation, the Arctic Slope villages of northern Alaska used an alternative piece of federal legislation to incorporate into a regional tribal government under the Indian Reorganization Act (IRA) of 1934. Broadly conceived, the

IRA legislation is the primary mechanism by which the United States federal government recognizes tribal government in Alaska (and throughout the country). While the legislation has tended to result in considerable fragmentation within the state (it is through this legislation that

-131- over 200 tribal governments are recognized in the State of Alaska, [Evans 2014]), it also allows for several Native villages to apply for IRA corporate status as a means of extending federal recognition to regional conglomerations of tribal groups. The governance model had been used elsewhere in Alaska. After lobbying efforts by the Alaska Native Brotherhood resulted in

Congress extending the federal IRA legislation to include Alaska in 1935, the Tlingit and Haida used it to form a regional tribal government in 1935. Groups can use federal recognition as a regional tribal entity under IRA corporate status to access federal resources for tribal organizations. Importantly, the creation of this parallel institution did not take away the ability of

North Slope Inupiat to simultaneously benefit from ANCSA as shareholders in the for-profit

Native corporation (Richards 1971). By organizing under the IRA tool, the Arctic Slope villages formed a regional tribal corporation with the authority to manage property, receive federal grants, and invest in social and human infrastructure.

For many of the other regions, however, the IRA tool was not a viable option. The regional boundaries created under ANCSA had been founded on a ‘similar use’ principle (and divided into the regional associations developed to advocate for the interests of the various Alaska Native groups). However, most of these regions were too diverse in their makeup to qualify under the

IRA as a single tribal entity. Even in the far North—where Indigenous diversity tends to be lower, falling under an umbrella designation of Inupiat—the Inupiat Community of the Arctic

Slope was forced to exclude some nearby communities. The Department of the Interior, pursuant to the IRA legislation, had determined that not all the northern Inupiat communities belonged to the same tribal entity, and as such, had excluded three villages from joining under the umbrella of the regional tribal government (but they were otherwise included in the ANCSA regional corporation; Patty 1971). Despite this, many of the other regions wanted to follow suit, and

-132- looked for alternative models to advance their goal of political self-determination.

ANCSA did not occur in a total vacuum of policy evolution; the norms around the

Indigenous-state relationship were changing at the national level as well, with pressure building to find alternative models following the finalization of ANCSA. In 1975, Congress passed the

Indian Self-Determination Act (PL 93-638), requiring federal agencies (including the Bureau of

Indian Affairs) to contract programs out to Native American organizations and tribal governments. This contracting out policy was implemented nationally, and in Alaska, the bureau extended the terms of the relationship, using an “Order of Precedence” to recognize IRA tribes, traditional tribal governments, ANCSA village corporations, ANCSA regional corporations, and tribally authorized non-profit corporations for the purposes of contracting (Central Council

2017). Although the regional and community corporations could access these funds, many were still in the early stages of setting out their corporate strategies, and Native leadership was concerned about mixed mandates (Patty 1971).67 Instead, they turned back to the informal institutions that had been utilized in the push for ANCSA, transforming them into non-profit regional Native associations incorporated to manage health and social services. Several alternative statutes were used for incorporation. Some groups, like the Aleutian Pribilof Islands

Association and the Association of Village Council Presidents, used Alaska state laws—namely, the Alaska Non-Profit Corporation Act—to formalize the regional institution.68 Others, like the

Arctic Slope Native Association, used the Indian Self-Determination Act (PL 93-638) to

67 Some regional corporations have taken up components of health and social services, including the NANA Regional Corporation, Inc. which funds language training, financial support for elders, and cultural programming, These activities are in line with Wilson and Alcantara's (2012) model of Indigenous Corporate Governance. 68 Under the Indian Tribal Governmental Tax Status Act, passed by Congress in 1982, Section 7871 of the Internal Revenue Code (IRS) treats tribal governments as state governments for tax purposes. Some of the non-profit corporations utilize this law to become tax-exempt as 7871 Organizations (First Nations Development Institute 2009).

-133- incorporate and seek federal status as a non-profit tribal organization.

A third regional form of governance also emerged out of ANCSA’s failure to meet the political goals of Indigenous leaders. During the ANCSA negotiations, issues of Native subsistence pervaded the discussions, though the focus continued to favour questions of land ownership. While Congress emphasized that the final legislation should protect “Native subsistence hunting, fishing, trapping, and gathering rights,” the actual final text of the ANCSA legislation failed to do so (Alaska Federation of Natives 1998). Earlier drafts of the bill had included the protection of subsistence rights through the designation of public lands around

Native villages as ‘subsistence use areas,’ with the option of closing the lands to non-subsistence uses in some cases. However, these provisions of the bill faced considerable opposition from the

State of Alaska and oil lobbyists, and both provisions were ultimately dropped from the final bill.

ANCSA went further to clarify its lack of commitment to subsistence rights by extinguishing

“any Indigenous hunting or fishing rights that may exist” in Section 4 (b) of the act (Alaska

Native Claims Settlement Act 1971, p. 690). To fast-track the final legislation and get support from conservationists and from Alaska Natives alike, legislators promised to revisit these conversations in later legislative negotiations by including a provision for future discussion on the management of public lands within Section 17 (d) (2) of the act.

The inclusion of the “d-2” provision enabled support for ANCSA while delaying key questions about public land, wildlife reserves, and subsistence activities within the state to a later date, prompting yet another round of legislative bargaining. Following years of negotiation, and continued Alaska Native leadership lobbying, Congress passed the Alaska National Interest

Lands Conservation Act (ANILCA) in 1980. Title VIII of ANILCA was dedicated to the question of subsistence, land management, and land use. It granted hunting and fishing rights to Alaska

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Natives and other rural residents, under the condition that the fish and game being hunted/harvested are not considered threatened. And, in another fit of institutional development,

Section 805 of Title VIII established local Fish and Game Advisory Councils, along with six regional subsistence advisory councils (Alaska Federation of Natives 1998).

The regional association / non-profit corporation model made possible through the State of

Alaska’s Non-Profit Corporation Act was not the only mechanism through which Alaska Natives increased their institutional capacity and worked to satisfy their political and governance goals.

Some of the ANCSA regional corporations also utilized their strong regional presence to advance the development of regional public governments to administer programs and services to their local populations. Unlike tribal governments, which restrict their membership and voting to

Alaska Natives within a community or regional boundary, public governments are political bodies open to all individuals. Similarly, to their institutional advancement through the federal

IRA legislation, the Inupiat of the North Slope began to organize a push for the creation of a regional borough government prior to the passage of ANCSA. The Inupiat leadership recognized that while ANCSA gave them ownership over large tracts of land in the North Slope, they would have no capacity to raise revenue other than through leasing or developing their privately held lands. However, the Alaska State Constitution contains a provision allowing citizens to organize for “maximum local government” through the creation of borough governments. In 1972, the

Inupiat of the North Slope voted to create the North Slope Borough government. Unlike the tribal and non-profit entities discussed above, the borough is a regional public government

(essentially a municipality) that has the authority to tax development within the region and keep resource revenues local. With major oil and gas development moving forward in the North

Slope, this effort had the potential to bring in significant revenues for a regional government.

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Inupiat leader Eben Hopson highlighted the opportunities available through the development of a borough government:

We wanted the right to send our children to schools operated by our own people serving on a local school board. We wanted to high school within our own area. We wanted to give our children the finest possible education, an education good enough to equip them to improve their world, even as we were attempting to improve our world. Eben Hopson, 1973 The creation of the North Slope Borough extended Indigenous control over a 56-million-acre region at the top of Alaska and converted the mechanism for ‘maximum local government’ into a tool for Indigenous political empowerment in the North. The Inupiat of the Northwest Arctic (the

NANA region) followed suit in the early 1980s, voting to create the Northwest Arctic Borough.

As with the North Slope—as it became increasingly evident in the early 1980s that the

Northwest Inupiat had the potential to develop a large zinc mine on regional corporation lands— the attractiveness of the borough government was its ability to tax resource development.

Meanwhile, the relative population homogeneity of the northern regions (each with majority

Inupiat populations) has meant that these public governments have operated as de facto

Indigenous governments.

Summary – The Governance Implications of Venue Shopping

As Alaska Native leaders sought to advance their goals for political self-determination, the original ANCSA legislation proved highly resistant to change. The act was a clear articulation of the paradigm of Indigenous economic self-determination, but the policy tool limited opportunities to enlarge the policy paradigm through this venue. While there was political movement forward on the national level through the Indian Self-Determination Act, the paradigm of political self-determination remained unfulfilled for most Alaska Native nations. As a result,

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Indigenous political leaders engaged in venue shopping, exploiting opportunities for policy layering and policy conversion to advance their governance aims.

What is the outcome of all this venue shopping? In Alaska, the actual number of institutions—and the way they were created—can vary considerably by region. Nonetheless, throughout the State of Alaska, the degree of institutional fragmentation is remarkable. Locally, there are over 200 tribal governments in Alaska, which are generally linked (institutionally) to the non-profit regional native associations, although the connection between tribal government and regional association varies based on whether the regional association was created through federal statutes (strong relationship) or through legislative mechanisms at the state level (weaker relationship). There are also nearly 200 community corporations that emerged out of ANCSA, which have some connection with the regional level, but generally remain functionally distinct in their governance and corporate structure. Additionally, most localities have public municipal governments, in addition to the creation of regional subsistence and game committees, and the creation of de facto Indigenous (yet public) borough governments in other cases. This institutional diversity is a result of Alaska Native leadership having used so many different avenues to advance their political and economic goals.

In addition to the sheer number of governance institutions in Alaska, a second important component to note is the timing of institutional development. As can be seen when compared to the Canadian case, which will be detailed below, institutional development in Alaska took place relatively quickly. Most of the institutions noted above were in operation by 1995, just twenty years after the ANCSA settlement, and there has been a high degree of institutional stability in

Alaska since the mid-1990s. As Alaska institutions tended to be created to address specific gaps in authority, or through enabling legislation that could fit the political goals of Alaska Native

-137- groups, the resultant institutions tend to be narrower in their focus and organizational mandates.

Nonetheless, it meant that institutional creation could occur much more rapidly, and it may be the case the comprehensiveness of a single institution is at odds with its timely creation.

4.2 Enlarging the Policy Paradigm: Policy Flexibility and Institutional Outcomes in

Canada

Like the Alaska Native advocates, northern Indigenous groups in Canada attempted to enlarge the policy paradigm and advance their goals for political self-determination through a variety of available venues. Leading up to the introduction of the Official Policy of Negotiation, the judicial venue was particularly well-used to challenge the government’s failure to engage on

Indigenous rights or meet past obligations. The timing of Indigenous protest movements and the advancement of Indigenous goals through the judiciary were important to the introduction of the

Official Policy of Negotiation (Scholtz 2006), yet despite this clear policy shift, the Official

Policy of Negotiation had a much less immediate impact on Indigenous groups in Canada.

Although the policy legitimized Indigenous groups and their claims throughout the North, unlike

ANCSA, which finalized a land claim, the passage of the Official Policy of Negotiation in 1973 was merely a starting point.

The policy invited Indigenous groups that had never previously signed treaties to enter negotiations to finalize modern treaties. Indigenous groups in the North moved quickly to negotiate their claims. The first six groups69 to enter the negotiation process were the Inuvialuit and Dene-Métis groups in the Northwest Territories, the James Bay Cree and Inuit in Quebec,

69 Until 1991, the Canadian federal government would only negotiate with up to six Indigenous groups at any one time.

-138- the Yukon First Nations, and the Nisga’a in British Columbia (Alcantara and Davidson 2015).

The federal government, however, had some clearly stated preferences for negotiation, chief among them being its preference for “large regional claims” which brought together several distinct Indigenous nations under a single negotiation process. The first modern land claim, the

James Bay and Northern Quebec Agreement, advanced along this model, bringing two

Indigenous populations—the Cree and Inuit of northern Quebec—together under a single claim.

Early in the Northwest Territories process, Indigenous groups fell in line with the favoured federal model. The Inuit in the Northwest Territories moved first, submitting their claim in 1976.

Meanwhile the Indian Brotherhood of the Northwest Territories70 joined political forces with the

Métis Nation of the Northwest Territories, and together submitted a large regional claim in the late 1970s.

Within five years of the federal government’s announcement of the Official Policy, however, the policy was facing internal pressure. At both the federal and territorial levels of government, policymakers were growing concerned about the prolonged nature of negotiations and how few land claims had been finalized or seemed close to finalization. By 1978, only one land claim had been settled—the James Bay and Northern Quebec Agreement—and one

Agreement-in-Principle, with the Inuvialuit of the Northwest Territories, had been signed.

Although only five years had passed, the policy itself did not appear to be a ‘quick fix’ on the way to developing the North or repairing the relationship between Indigenous peoples and the state. Federal policymakers cautioned against applying unrealistic expectations to the policy, noting “the settlement process in Alaska and Australia took over a decade in each case between the development of a concerted native claim and final legislation” (Government of Canada 1979,

70 This organization became the Dene Nation in 1978.

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p. 12).71 However, the extended nature of negotiations was a clear cause for concern. Although policy recommendations around this time focused on continuing under the negotiation process, policymakers noted that, given the potential for negotiations to break down in the future, there might be some merit in abandoning negotiation in the future, and “beginning now to explore more fully the desirability of legislative settlements along the lines of the Alaska experience”

(GNWT 1979; p. 13).

Despite the questions facing the continuation of the negotiation processes, the period of policy review identified and highlighted several ways in which finalized claims could be reached more expediently. Factors affecting the speed and success of negotiations included:

1. Pressure from imminent (or anticipated) major development within the claims area;

2. Time limitations imposed by court proceedings or the threat of court action;

3. The relative homogeneity and smallness of the group, making negotiations less

difficult and possible to carry on in a sustainable fashion;

4. The pragmatism of negotiating groups (in particular, COPE for the Inuvialuit and

the James Bay negotiators who were “more pragmatic, concentrating on

compensatory aspects [of the claim] and less on political philosophy”).

(GNWT 1979; p. 6)

The pragmatism of negotiators was highlighted in subsequent federal changes to the Official

Policy. To push Indigenous negotiators towards a narrower economic view of negotiation, the federal government rolled back some of the language regarding the scope of the policy to address broader governance considerations, narrowing the slate of negotiable rights. The 1981

71 The quote makes reference to the Australian Land Rights Act of 1976, which was a piece of legislation applying to the Northern Territory of Australia. The legislation established a process by which Aboriginal Australians could claim land rights based on traditional ownership.

-140- retrenchment of the Official Policy removed provisions allowing for the creation of community and regional governments to control education, health, and some social services. In addition to more narrowly conceiving the range of negotiable rights, the new version policy had a strict extinguishment clause. The clause required that Indigenous peoples give up their future claims to land title in exchange for collective fee simple title over ‘selected’ lands, collective fee simple title over subsurface rights, consultation in the management of Crown lands, preferential harvesting and subsistence rights, and cash compensation (Fenge and Barnaby 1987).

The flexibility of the policy model shaped institutional outcomes in another very important way.72 While the Official Policy of Negotiation stated a preference for the negotiation of large regional land claims—those which covered several distinct national groups across a large geography (such as the Dene-Métis claim over most of the Mackenzie Valley region in the southwest part of the territory)—the federal government was also acutely aware this model posed problems from the logistical standpoint of negotiation. As was noted in the 1979 policy review, large regional claims had the potential to drag on, and delays were common as the claims brought together distinct native groups (represented by separate native organizations) with diverse political and economic goals, and inconsistent backgrounds with respect to the historic or legal relationship with the federal government. These dynamics meant that different factions could exist within the negotiating group, with different preferences regarding the balance of economic versus political outcomes and preferred institutional models, and competing goals around leadership models, all of which would slow down progress on negotiation. Thus, the federal government progressively agreed to hear ‘small regional claims’ by Indigenous nations.

Beginning with the Inuvialuit in 1977, smaller and more homogenous Indigenous nations

72 The degree of flexibility that federal political actors have in wielding that instrument is also important.

-141- subsequently negotiated claims. The Dene-Métis claim subsequently broke apart into several separate processes, including the Gwich’in, Sahtu, and Tlicho processes, more closely linking regional Indigenous national identities to the institutions designed and implemented.

The relatively slow-moving negotiation process, combined with the limitation on new entrants into the process, meant that few other Indigenous groups accessed the negotiation route until the 1990s.73 Moreover, the federal government had complete control over the style and nature of negotiations, with the ability to expand or constrict the range of matters available for negotiation. Northern Indigenous groups in Canada faced an additional set of barriers to institutional development. Unlike Alaska Natives, many of the Indigenous groups advancing their claims through the policy of negotiation could not access other federal policies in Canada, limiting the opportunities of Indigenous nations to address their goals through bypassing strategies. The exclusion of Inuit and Métis groups from the Indian Act meant that most other policy mechanisms were out of reach for the modern treaty population in the North. Despite their inability to access alternative federal policy mechanisms, northern Indigenous populations did intersect with national policymaking in other important ways. As with the case of Alaska

Natives, the goals of northern Indigenous populations to enlarge the policy paradigm to include mechanisms for Indigenous political self-determination in Canada were broadly similar to the national Indigenous movement, which encompassed Inuit, Métis, and First Nations (treaty and non-treaty, status and non-status) across Canada. Thus, northern Indigenous populations joined the national lobbying effort to have their rights heard. As Canada was preparing to create a

Charter of Rights and Freedoms to integrate into its patriated constitution, Indigenous leaders and organizations from throughout Canada lobbied hard for formal recognition. In 1982, the

73 Of the 26 modern treaties that have been finalized in Canada, only three were finalized prior to 1990.

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Canadian Constitution enshrined Aboriginal rights in Section 35 of the newly patriated constitution, further protecting them in Section 25 of the Charter of Rights and Freedoms.

The roll back on the scope of the Official Policy of Negotiation was ultimately short- lived, as the federal government faced pressure from Indigenous groups who were spurred on by the inclusion of Indigenous rights in the patriated Canadian Constitution of 1982. The flexibility of the Official Policy of Negotiation allowed for the Charter’s normative changes to seep back into official government policy. In 1986, the federal government reverted to its more expansive reading of the comprehensive land claims policy, reversing several of the provisions in the narrower In All Fairness policy to allow for the negotiation of governance over the social and administrative roles of government. The 1986 changes to the land claims negotiation process changed the opportunity structure for the northern Indigenous groups that had already signed land claims (the Inuvialuit) or had finalized their Agreements-in-Principle (the Dene-Métis groups). New advocacy, focused on the creation of a regional government in the North, began to emerge in parallel. In the absence of an official policy of self-government, and in the absence of federal willingness to negotiate comprehensive self-government alongside land claims processes,74 northern Indigenous groups advanced proposals that would affirm the principles of self-government but in a different form. In 1987, the Inuvialuit re-submitted their proposal for the creation of a regional public government in the Western Arctic,75 with substantive administrative powers that would function alongside the development of the territorial government within the Canadian constitutional framework. The model borrowed heavily from the borough government model that had developed in Alaska. However, unlike the borough

74 Until 1995. 75 The Inuvialuit had consistently articulated a vision for the achievement of some measure of regional autonomy, including language to that effect in the original land claim (Inuvialuit Nunangat, Part IV), in the interim Agreement- in-Principle (Part 18), and in the Final Agreement (section 4(3)) (COPE 1987).

-143- model in Alaska, the government would not have been a creation of the Government of the

Northwest Territories and thus, would not depend on the territorial government for its authority

(INAC, 1992). Opportunities for northern Indigenous groups also came in the form of the changing constitutional structure in the North. As the Inuit land claim advanced in the eastern

Arctic, the opportunity to create a new territory in the North emerged.

The patriated constitution of 1982 opened a second venue for the advancement of

Indigenous political rights. With Quebec’s opposition to the patriation and the inclusion of the

Charter in it, Prime Minister Mulroney attempted to “bring Quebec back in” through a series of constitutional negotiations. The Meech Lake Accord focused its efforts on Quebec, and little attention was paid to Indigenous issues. As a result, the Assembly of First Nations, the Inuit

Committee on National Issues, and the Native Council of Canada all roundly rejected the style of executive decision making that constrained political consultation and failed to address

Indigenous concerns (Peach 2011). The Accord was ultimately scuttled through the political action of Elijah Harper, a Manitoba MLA and member of the Red Sucker Lake First Nation. The introduction of the Accord in the Manitoba legislature required the unanimous approval of all

MLAs. Harper initiated procedural delays in the Manitoba legislature, refusing to consent to its introduction, and pushing the vote past the Accord’s deadline of June 23, 1990 (Peach 2011).

The failure of Meech Lake opened the door for Indigenous inclusion in the Charlottetown negotiations.

The Charlottetown process made considerable progress in bringing Indigenous interests to the fore, and the Charlottetown Accord put forward institutional mechanisms for the inclusion of

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Indigenous political actors within the Canadian federal system.76 The accord developed models of both self- and shared-rule institutions, and included language around the inherent right to

Indigenous self-government, so when the accord failed to pass the national referendum in 1992, opportunities remained to revisit some of these mechanisms through other sites (Doerr 1997).

The Official Policy of Negotiation was a natural venue, as its flexibility as a policy tool could enable a relatively quick shift on the part of the Canadian federal government. The Canadian federal government layered Indigenous self-government into Canada’s Official Policy, by expanding the potential rights and benefits that could be negotiated through those processes, increasing opportunities for Indigenous nations to assert components of political self- determination; in essence, the comprehensive land claims simply became more comprehensive.

This policy change has since enabled Indigenous groups to build new governance models into their negotiations, including the creation of Indigenous self-government institutions. Many of the

Indigenous groups that had not yet finalized land claims agreements in 1995 were able to switch course and include provisions for self-government in their comprehensive negotiations. For those nations with modern treaties already in force, many re-started the negotiations process for the creation of self-government institutions.

Summary – The Governance Implications of Venue Consolidation

The Canadian negotiation process heavily favoured (and continues to favour) the federal government, and Indigenous groups had limited resources by which to hold out for more advantageous outcomes. Some, like the Inuvialuit in the Northwest Territories, benefitted

76 Although, it is again important to note – the actual institutional implications for northern Indigenous populations would have been relatively minimal.

-145- directly from ANCSA; in 1976, the Arctic Slope Regional Corporation advanced the Inuvialuit a loan, allowing them to threaten legal action over the government’s failure to advance their claim

(IRC 2009). Other mitigating factors would occasionally weigh in the favour of Indigenous groups. The James Bay Cree and Inuit of Northern Quebec completed their negotiation in relatively speedy fashion (under two years), in large part due to a major hydroelectric project that depended on its speedy resolution (Alcantara 2007). Nonetheless, the policy centralized power in the federal government, slowing the process of institutional change and restricting the ability of

Indigenous groups to create Indigenous organizations through alternative venues.

As northern Indigenous leaders sought to advance their goals for political self- determination, the Canadian institutional landscape offered few opportunities to exploit. The

Official Policy of Negotiation was a tool of the federal government, which could unilaterally restrict or expand as desired. With few alternative venues to utilize to advance their goals for political self-determination, Indigenous political leaders focused their efforts on the federal government, pressing from multiple angles including through the courts, and through constitutional patriation and subsequent negotiations.

Unlike the venue shopping that characterized the attempts by Indigenous leaders to enlarge the policy paradigm in Alaska, Canada’s Official Policy of Negotiation consolidated a venue for policy change through which to advance Indigenous rights. Compared to the static nature of the legislative tool used in the case of Alaska, Canada’s Official Policy reinforced federal control over the policy area while also allowing for greater flexibility over time as the federal executive could quickly implement new or updated policies in response to changing political conditions.

With authority so clearly located at the federal level, what venue shopping has occurred has tended to advance through the courts as a means of challenging federal authority, although there

-146- are some important examples of provincial involvement in the negotiation and finalization of modern treaties.

4.3 Conclusion

The literature on path dependency and gradual policy change highlights the consequences of a given policy decision: How do past decisions constrain future choices? What are the unintended consequences and long-term effects of a policy tool? While the substance of the policy decision matters for outcomes, it is clear from this cross-case comparison that how a policy is implemented matters equally as much for both the types of institutions created, as for how they ultimately operate as component parts of the federal political system.

The evolution of the policy paradigm in Canada and the United States highlights how the flexibility of a policy tool can affect not only the opportunity structure in which minority political actors operate, but also fundamentally shape the structure of political organization in the long term. Both the United States and Canada chose a similar policy instrument to manage the

Indigenous-state relationship in the 1970s and institutionalize the paradigm of Indigenous economic self-determination. ANCSA developed a model of modern land claim agreement

that transferred collective fee simple title and money to Indigenous regional corporations through a process of legislative bargaining. The Canadian policy of negotiation similarly used the creation of Indigenous regional corporations to transfer fee simple title and monetary settlements, though the process also folded in land management and subsistence rights in a way that ANCSA did not. The cross-case comparison clearly shows that while the policy instruments chosen for land claims in Alaska and the Canadian North were quite similar, how the land claims were settled occurred through very different processes and had important long-term implications

-147- for strategies used by Indigenous leaders to enlarge the policy paradigm and for the institutions of political governance that were ultimately created.

It is not necessarily clear which model has been more successful in pushing the multinational federal system to better accommodate the political goals of Indigenous nations.

The institutions created under Canada’s Official Policy of Negotiation are considerably more comprehensive, and the flexibility of the policy tool allowed for the enlargement of the policy paradigm to include components of political self-determination through self-government institutions. However, the process of negotiation is remarkably slow and has reinforced the power imbalance between minority nations and the state. For example, after more than 40 years, the Inuvialuit—one of the first Indigenous groups in Canada to negotiate a modern land claim— have yet to finalize self-government. While some of their existing institutions have crept into otherwise unclaimed policy areas (Wilson and Alcantara 2012), their ability to self-govern is demonstrably less than North Slope Inupiat, who have had functional control over all policy management within their region since the 1970s through the combination of the ANCSA regional corporation, non-profit associations, tribal government, and the regional public borough government. Nonetheless, the longer process of negotiation solidified some important institutions for the Inuvialuit, in particular, shared-rule institutions overseeing Indigenous subsistence practices and establishing co-management regimes for regulatory oversight into the finalized treaties (White 2002).

In the United States, Alaska Natives were unable to use the ANCSA legislative process to meet their goals. The legislative mechanism used to institutionalize economic self-determination made it nearly impossible to use that same site to enhance and enlarge the policy paradigm to address Indigenous goals for political self-determination. Because of this inflexibility, Alaska

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Native groups engaged in bypassing strategies, shopping their policy preferences through a variety of state and federal programs and policies. This venue shopping has meant most Alaska

Native groups use a constellation of various institutions to operate their sovereignty. While not all the institutions are inherently ‘Indigenous,’ Alaska Native groups were able to create these institutions much more rapidly and have been operating with considerable autonomy and authority over their members since the mid-1980s. However, though political development ultimately occurred much more rapidly than in northern Canada, the consequence has been considerable institutional fragmentation.

The long-term implications of policy tool choice on resultant institutional configurations are clear in the cross-case comparison. While we can fairly easily see the differences in the institutional frameworks, it is much more difficult to assess how these different pathways have influenced the practice of Indigenous self-determination. Simply taking stock of the institutional structure does not allow us to understand the capacity of institutional creation to achieve the representational goals of Indigenous nations on the one hand, or to achieve the states’ goal to remove conflict from the federal system on the other. In the next chapter, I will develop the analytical framework to explore these elements.

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Chapter 5 – The Contemporary Governing Landscape – Controlling for Variation

5.1 The Comparative Framework: Controlling from Cross-National Variation in

Institutional Outcomes

In the first half of the dissertation, I discussed the intersection of federal political systems and the dynamics of policy change, highlighting a key point of divergence in institutional development between Canada and the United States in their management of internal Indigenous nations. These chapters traced the political development and implementation of new organizational models, highlighting how—despite implementing a very similar system of modern land claim agreements—institutional layering has resulted in distinct structures of governance in the two countries.

Given the differences between the two established systems of governance in Alaska and northern Canada, important questions remain with respect to the influence of different governance regimes on the political dynamics between the state and the minority nation(s) within the federal structures in which they operate. While the literature on multinational federalism suggests that the emergence and empowerment of minority nations (in this case Indigenous nations) within the federal architecture will modulate conflict between minority nations and the state (/majority nation), there are few attempts to theorize or examine the implications of this political reorganization. In the case of modern land claim agreements, new governance bodies were implemented as a clear response to the “problem” of minority (Indigenous) nations. The multinational model offered several promises to the state and Indigenous nations alike, including increased economic development and improved social wellbeing. For the state, the multinational

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model also held the promise of shifting the sites of dissent away from the traditional minority

nation-majority state dissent and into a new/other form. Nonetheless, the degree to which either

of the models implemented in Alaska and the NWT is “successful” in moderating political

dissent remains unclear. Thus, the remainder of the dissertation will focus on the second question

driving the research: What are the impacts of the Canadian and American governance

experiments for the manifestation of political conflict over resource development in the North?

In the first half of the chapter, I develop the analytical framework for exploring the

relationship between institutional design, national or cultural group identity, and patterns of

contestation. I explain and justify how I conduct my review of the patterns of conflict, and I

defend some of the key assumptions that form the foundation of my analysis. The goal of this

section of the chapter is to document how I systematically assess conflict in northern Alaska and

northern Canada, exploring the definitions of intra- and inter-group patterns of conflict, and

vertical and horizontal patterns of conflict. In the second half, I highlight how two important

sites of variation in institutional design—the institutionalization of national identity and the

institutional consolidation/fragmentation of authority—operate within two of the case studies,

the NANA region of Alaska and the Inuvialuit region of the Northwest Territories.

5.2 Identity, Institutional Legitimacy, and Models of Dissent

Political dissent is both natural and expected in a healthy democracy, but the form and

sites of dissent in the political system are shaped in part by institutional structures. Although

political dissent can entail large-scale political conflict—violent protests, secessionist

movements, state suppression of citizens, or even civil war—within the context of advanced and

stable democracies, political conflict tends to take less extreme forms. Smaller scale political

-151- conflicts, investigated here, include intra- and inter-group political challenges (including litigation or political battles), as well as group divisions, over resource development.

Theories of subnational autonomy can help us understand the evolving relationship between state and minority nations, and the potential for political contestation. In multinational states, federal political systems are a compromise between regional or cultural groups seeking self-determination and the political goals of federal leadership (Bakke and Wibbels 2006). As discussed in Chapter Two, when the institutional framework of multinational federalism presumes, and is designed to deal with conflicts between minority nation(s) and the state, the assumption of homogenous within-group preferences is both internally coherent and plausible.

However, the expectation of within-group homogeneity breaks down once institutions are created that address minority national goals for greater power and autonomy. Divergent preferences within a minority population can begin to emerge the moment that minority national autonomy is realized and institutionalized. Concerns and divergent preferences then arise around questions of group leadership, the allocation of new resources—including monetary, land, or governance resources—and how decisions should be made in the new spheres of influence and authority.

The site at which political conflict occurs is significant, as it offers a window into the extent to which new political institutions serve as effective and legitimate institutions of political authority and representation. In the context of the multinational framework, investigating patterns of dissent helps us to understand the degree to which institutional creation has successfully mitigated the conflict between minority nations and the state (/majority nation).

Through the processes of federalization, the creation of new institutions of shared and self-rule is designed to integrate minority nations into the structures of authority. As such, these new

-152- institutions have a representative function: self-rule institutions have an important role in interest aggregation, both in representing and advocating on behalf of the interests of the minority nation, and in responding to citizens interests in their new powers of authority; shared-rule institutions have an important role in voicing the concerns of minority nations within the institutional architecture of the majority nation/state. By investigating new sites of conflict, associated with institutions designed to facilitate self-rule and shared-rule, I am testing the multinational framework. I am interested in whether conflict has shifted away from the original site (minority nation-state), and into a new form, and I am also interested in how institutional design shapes this new form of conflict. If new institutions of representation are not perceived to effectively respond to the preferences of their citizens, citizens may turn to alternative venues, or these institutions may themselves become the site of conflict. Investigating sites of conflict can help uncover ideas people hold about the constituency to which they belong, the identities they hold, and the political representation they are seeking. In this way, sites of conflict can be used as a test of the ability of institutions to engage in coherent and responsive policy development.

To explore the patterns of political contestation, this project focuses on the politics of resource development in the North. The politics surrounding the (local) public acceptability of resource development in the North have changed dramatically over the past 50 years. Many of the same Indigenous political actors who once organized against resource development projects now publicly support them and have led the way on new development. However, the shift from opposition to support for resource development projects on the part of northern Indigenous leadership is not (in itself) puzzling. Since the early 1970s, the relationship between Indigenous peoples and the state has evolved significantly. The negotiation and settlement of modern land claim agreements—from the Alaska Native Claims Settlement Act (ANCSA) in 1971, the

-153- creation of Nunavut as an Inuit-dominated territory in Canada, through to the Tlicho Agreement in the Northwest Territories in 2003—has fundamentally changed the opportunities available for the economic and political engagement of Indigenous nations in the North.77 Indigenous nations that were sidelined during the proposed resource developments of the 1960s and 1970s are now increasingly partners in resource development. Not only have modern land claim agreements enabled Indigenous involvement in the management and decision-making processes overseeing resource development projects, they have also ensured a financial stake in resource development through fee simple ownership of land. Under modern land claim agreements, Indigenous institutions can better capture the economic rents from resource development projects.

Nonetheless, while the shift from opposition to resource development to its support by

Indigenous leadership is not all that surprising, simply reformulating incentives and opportunities does not necessarily mean that a broad-based political consensus has been achieved. Moreover, while the benefits of resource development are better captured by Indigenous nations since modern land claim agreements, the distribution of benefits is not necessarily equally felt by all

Indigenous peoples. Thus, the dynamics of resource development politics in the North are a fruitful political space for examining the implications of governance decisions and how they shape political contestation.

Since the introduction of modern land claim agreements, the governance models that have emerged in northern Canada and Alaska have diverged in important ways. Alaska has evolved into a fragmented model of governance, with policy portfolios and leadership diffused among a variety of organizations that have minimal formal coordination. By comparison, the

77 The negotiation of modern land claim agreements and self-government are still ongoing within many of the regions of the Northwest Territories; including the Inuvialuit self-government negotiations and the Dehcho land claims process.

-154- institutions of governance in northern Canada tend to be much more highly coordinated.78 The

Alaska and Canadian models of modern land claim agreement have diverged in a second important way, with respect to how regional boundaries were created. How each process

(ANCSA as compared to the negotiated process in Canada) went about defining the territorial authority of new institutions has had important implications for the degree to which institutions are linked with distinct indigenous national identities. Conducting a cross-national comparison allows us to assess contemporary political dynamics in terms of these two important variables:

(1) institutional fragmentation/consolidation: the degree to which institutional development fragments policy authority and divides governing paradigms across institutions, and (2) institutional identity: the degree to which institutions embed distinct national identities.

Despite the divergence in governance models being implemented in Alaska and the

Northwest Territories, the political and policy debates regarding these new governance arrangements highlighted several similar concerns. As will be shown in the next section, political concerns in both the United States and Canada focused on three key considerations: (1) the institutional move towards cultural fractionalization; (2) the creation of institutions that were (or had the potential to become) incongruent with the dominant institutional/governance paradigm; and (3) the potential for the combination of these two factors to subsequently increase political tensions throughout the northern regions.

78 There will increasingly be deviations from this central coordination as self-government negotiations move forward in a few important cases in the Northwest Territories. The self-government negotiations in the Inuvialuit region will keep Indigenous self-governments separate from the Regional Corporation and other existing institutions that developed from the land claim, an example that will be explored in greater depth within this chapter. Meanwhile, in the Sahtu region, self-government negotiation is moving ahead with community self-government (which will thus result in a much greater degree of institutional fragmentation as compared to other contemporary agreements in Canada).

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5.3 The Implications of Institutional Design – The Northwest Territories

In Canada, until the early 1980s, the Government of the Northwest Territories (GNWT)

was still very much a fledgling government, attempting to break free from its subordinate place

in the federal system. ‘Responsible government’ as it is known in the territory today had not yet

made its way northward, and much of the operation of the territory remained in the hands of the

NWT Commissioner (Airhart 1979). Despite the subordinate role and position of the GNWT in

the Canadian federal system (and thus in the process of negotiating northern claims), the GNWT

nonetheless raised several concerns associated with the institutions being created through the

Official Policy of Negotiation (as discussed in Chapter Four).

5.3.1 Fragmentation of the National/Cultural Group

The implementation of the Official Policy of Negotiation created two types of

institutions. Firstly, modern land claim agreements created new Indigenous development

corporations that were overtly and deliberately tied to national or cultural groups. Beneficiary

status within a land claims organization required Indigenous/Native status, though the earliest

conceptions of the claims process did not necessarily require a membership within a specific

Indigenous nation (self-rule institutions). Secondly, modern land claim agreements created new

environmental and wildlife governance systems that were to remain public in nature, but which

ensured Indigenous membership or representation within the organizational structure (shared-

rule institutions) (Kroeger 1977). This split between identity-based institutions and public

institutions was a compromise in institutional form. Indigenous nations increasingly wanted

control over regulatory processes and management, yet the Government of Canada did not want

to give up control (White 2002).

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This compromise between shared and self-rule institutions, and particularly the make-up of the self-rule bodies, faced considerable criticism. In 1977, then-Commissioner of the GNWT,

Stuart M. Hodgson, took issue with the nature of institutional development. By this stage of the process, the dividing lines of negotiation had been drawn very roughly between the Inuit and

Dene (and Métis) populations within the NWT. Nonetheless, Hodgson criticized the modern treaties process as having “ethnic overtones” that were not in keeping with existing NWT institutions. The creation of land claims organizations based on some degree of cultural or racial characteristic appeared to Hodgson to be at odds with the framework of the Official Policy of

Negotiation, which explicitly aimed to create new institutions reflective of the “Canadian political tradition” (Hodgson 1977, p. 7). To Hodgson, the creation of “ethnic” institutions (be they corporate or otherwise) was in direct opposition of that stated goal. Not only did institutions tied to national group identity contravene “the essentially multi-cultural philosophy on which

Canada and Canadianism rests,” the institutional development was argued by some to move away the contemporary reality of the Northwest Territories, which in “present reality…[has] mixed communities, mixed economies, mixed blood, and [is a] multi-racial society” (Murray

1977, p. 4).79 This view of modern treaties carries strong echoes of the White Paper, and the dominant political and ideational philosophy from which modern treaties marked a departure.

The federal government remained concerned that modern treaties would duplicate the outcomes of the Indian Act,80 raising “the spectre of such undesirable situations as ghettoism, apartheid,

79 A view that does not necessarily comport with the overwhelmingly Indigenous population base of the territory. 80 In the introduction of the White Paper, Minister Chrétien wrote “that the separate legal status of Indians and the policies which have flowed from it have kept the Indian people apart from and behind other Canadians… Many Indians, both in isolated communities and in cities, suffer from poverty. The discrimination which affects the poor, Indian and non-Indian alike, when compounded with a legal status that sets the Indian apart, provides dangerously fertile ground for social and cultural discrimination” (Chrétien 2011).

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African tribalism and the known evils of political partition in various parts of the world” (Murray

1977, p. 4).

The emergence of land claims tied to Indigenous national identities also had potential implications for the political and territorial entity of the Northwest Territories. The advancement of the Inuit claim to the eastern NWT, combined with the political ambitions of GNWT officials for provincial status, stimulated conversations around territorial divisions. Considering these two parallel goals, Commissioner Hodgson took the hard line that the Government of Canada should reject any proposal of dividing the territory to permit the more rapid evolution of the Northwest

Territories towards provincial status. He rejected the notion that the Inuit claim, over the eastern half of the territory, should create a future in which territorial division was based on a specific

Indigenous national identity. With this concern on his mind, Hodgson clearly viewed the process of modern treaties (more broadly) as a step down the wrong path towards territorial breakup, suggesting that “if land claims settlements recognize a community of interest along racial lines - and that’s really what Indigenous claims are all about - the pressure for division along racial lines will be immense” (Hodgson and Parker 1977; p. 8).

In addition to the cultural fractionalization that could come with territorial division,

Commissioner Hodgson argued that division could negatively affect the political suffrage of

Indigenous peoples in the North. He suggested that Indigenous political rights would be better protected under a single unified territorial government and that the division of the territory

“would reduce the political power of the native people” (Hodgson and Parker 1977; p. 8). He noted that separating out an area, such as the Mackenzie Valley region, “would create a smaller political unit with a non-native majority, replacing the current native majority in the larger

-158- political unit" (Hodgson and Parker 1977; p. 7), and putting Indigenous peoples at a political disadvantage within the new territory (opening up a potential site of conflict).

As the Policy of Negotiation began to mature, and negotiations moved forward, the flexible nature of federal negotiations increasingly gave way to progressively smaller claims linked more strongly to conceptions of Indigenous national identity. Although the federal government maintained its preference for large regional claims (such as the large Dene-Métis claim), there were practicalities associated with moving to smaller claims. The ‘large-group’ negotiations faced considerable barriers to completion, and quickly began to break down. In the

North, the Inuvialuit were the first to pursue smaller regional claims; they split off from the eastern Arctic Inuit claim when the Inuit Tapirisat of Canada (ITC) temporarily withdrew their claim from negotiation in 1976. The relative ‘success’ of the Inuvialuit claim made it clear that moving to small regional claims could bring about more rapid negotiation of land claims throughout the Northwest Territories. As these larger claims disintegrated into smaller pieces, the federal government’s willingness to negotiate with ‘smaller regional groups’ again raised concern in the GNWT.

The willingness of the federal government to negotiate claims with small regional groups

(like the Inuvialuit) when large regional claims failed to advance, clearly moved the territory towards greater fractionalization. As negotiations progressed through the 1980s, this self- reinforcing pressure increased. In 1988, a Dene-Métis Agreement-in-Principle was signed, encapsulating five linguistic tribes and 26 bands, with a final agreement initialed two years later.

However, disagreement grew within the group, and the Dehcho and Akaitcho walked away from the agreement over extinguishment clauses (which the federal government used as a mechanism to increase certainty over land title) and the provisions for self-government. In the absence of a

-159- final agreement that included all groups, the Government of Canada announced that it would negotiate regional claims. The move to establish sub-claims within each region became institutionalized as the Dene claim broke into five separate claims processes—the Gwich’in,

Sahtu, Tlicho, Dehcho, and Akaitcho (Connelly 1985)—three of which have been settled.

5.3.2 The Development of Incongruent Institutions

By the late 1970s, as policymakers highlighted their concerns with the policy framework through the federal review of the Official Policy of Negotiation, the only claim that had advanced significantly in the northern territories was the Inuvialuit claim. The Inuvialuit signed an Agreement-in-Principle in 1977, just six months after they had broken away from the larger

Inuit (ITC) claim for the Eastern Arctic. As such, the emerging contours of the Inuvialuit claim in the Western Arctic region acted as the blueprint upon which many of the early warnings were voiced regarding the implications of institutional design.

The Inuvialuit Final Agreement, which came into effect in 1984, covered 906,403 square kilometres of land, including 12,980 square kilometres of subsurface mineral rights that are owned by the Inuvialuit. The Final Agreement also saw the transfer of $152 million to the

Inuvialuit Regional Corporation over 14 years (IRC 1984). As a matter of principle, both the

GNWT and industry actors81 raised several key criticisms of the Inuvialuit Agreement-in-

Principle. In addition to their preference for large regional claims, the GNWT82 favoured a modern land claim process that would secure its future jurisdictional authority over northern

81 Industry at this time was primarily made up of oil and gas prospectors and developers, with a keen interest in developing onshore and offshore resources, and constructing a northern gas pipeline to southern markets. One early intervener in the land claims debate was Dome Petroleum, which had an interest in offshore resources near Tuktoyaktuk (Steeves 1981). 82 The GNWT, however, was a relatively minor player in the 1970s; the authority for negotiations rested primarily with the federal government.

-160- lands and resources. Thus, GNWT policymakers preferred a model that would transfer only

“modest land areas, little or no subsurface native ownership, [and limit] native participation in land management to an advisory role and an environmental regime for both public and native lands” (Airhart 1979; p. 7).83 Meanwhile, industry representatives raised concerns that transferring large tracts of land to native ownership would stifle development, and that the settlement of one claim with large land transfers would establish new precedents for other

Indigenous groups in the North (Airhart 1979). Neither of these concerns is surprising in the context of change. The Government of the Northwest Territories, as a landless government seeking provincial status, had a vested interest in preserving its future territorial autonomy.

Meanwhile, industry was interested in maintaining access to the vast resources of the NWT and was concerned that transferring large tracts of land to Indigenous groups would subsequently close off the transferred lands for future development.

Aside from the GNWT and industry concerns, there were several other related concerns about the incongruence of new institutions. One centered on the apparent paradox that the creation of the new institutions of corporate governance appeared to create for northern

Indigenous peoples. On the one hand, the transfer of ownership rights over land satisfied

Indigenous concerns over the loss of land to southern political actors. Moreover, both land ownership and the inclusion of Indigenous peoples in land management meant that Indigenous peoples would be active participants in northern development. However, on the other hand, the move to corporate governance models thrust Indigenous groups into the market economy by

83 It should be noted, though, that the political position of Government of the Northwest Territories was fundamentally transformed in the early 1980s. The territorial elections in 1979 saw the Dene Nation take part for the first time, and a number of Indigenous leaders were voted into office. Shortly thereafter, members made a commitment to do whatever they could to encourage the land claims process. The territorial election four years later produced a strong Indigenous majority within the assembly, and the territorial government’s commitment to the settlement of modern treaties increased again (GNWT 1988).

-161- necessarily linking economic outcomes to resources that existed primarily below ground (Airhart

1979). Some of these concerns were raised during the Mackenzie Valley Inquiry in the

Northwest Territories. Although he argued firmly in favour of settling land claims, Eben Hopson

(an Inupiat leader from the Alaska North Slope) highlighted several of the potential implications that had emerged from the ANCSA settlement and from the implementation of the regional corporation model in Alaska:

The politics of oil have had a very divisive influence in rural Alaska… Many of [the Alaska Native] regional corporations have signed exploration and option agreements with oil corporations and several of these regional corporations have begun to appear to be politically aligned with their oil corporate partners. This tendency to assist the oil corporations to avoid taxes may extend even to the point that our regional Native corporations will oppose the development of home-rule government in rural Alaska. Rather than fight for local self-determination for our people, the influence of the oil corporations may lead our regional corporations to fight against it. Even now, in fact, I wonder if we could have organized the North Slope Borough today against the opposition of my own Arctic Slope Regional Corporation, of which I am vice-president. Eben Hopson at the Mackenzie Valley Pipeline Inquiry (Berger 1985; p. 41)

The move to corporate institutions also raised red flags for the Government of the Northwest

Territories. The GNWT highlighted its concerns regarding both the capacity and the compatibility of the new corporate institutions of Indigenous governance to manage policy issues that were in the public interest. The GNWT also took the position that the corporate governance models being proposed in the Inuvialuit Agreement-in-Principle might not adequately address the governance needs of the region. In particular, territorial policymakers raised concerns that

“there is a possibility that the Final Agreement with COPE and the Government may be incompatible with Canadian political institutions, by way of granting federal and/or territorial

‘government type’ responsibilities to the corporate structures of the Inuvialuit, e.g.,

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environmental standards on Inuvialuit lands” (Braden 1979; p. 1).84 The institutions being created might, in short, be incongruent with the political goals they were meant to achieve.

5.3.3 The Institutional Potential for Conflict

The national or cultural fractionalization created through progressively smaller regional claims, combined with new institutional development in the form of corporate governance models, generated concerns about the potential for land claims to exacerbate tensions across both local and regional planes. The fact that the new land claims institutions would be overtly and deliberately based on minority group identities, while the existing political institutions and environmental governance systems were not, had (and has) the potential to introduce new sites of tension in local and regional politics.

Firstly, concerns were raised regarding the potential of the new institutions of governance to foster a system of insiders and outsiders. A 1980 report on the Inuvialuit Agreement-in-

Principle devoted several paragraphs to the possible effects of the new Inuvialuit governance institutions on existing public municipal governments in the region. To appreciate this 1980 report, it is helpful to recall that until the mid-1960s, there were few municipal governments in the NWT; municipal governments had been established in only nine communities85 (GNWT

1965). The municipal governments that had been incorporated tended to have a relatively higher proportion of non-Indigenous residents who frequently pushed for, and subsequently controlled, the local governments. The completion of land claims raised concerns about the future

84 From 1977 to 1979, George Braden served as an advisor to Charles Drury, a federal Member of Parliament who was charged with reporting on the political development of the Northwest Territories (the Drury Report was published in 1980). In 1979, Braden was elected as an MLA of the Northwest Territories and was subsequently chosen as the Leader of the Elected Representatives, a role akin to that of premier. 85 There are 58 communities in the Northwest Territories and Nunavut.

-163- relationship between Indigenous institutions and public municipal and territorial institutions, particularly in mixed communities / municipalities like Inuvik and Aklavik in the Inuvialuit

Settlement Region.

As negotiations advanced for the Inuvialuit in the early 1980s, the development of

Inuvialuit institutions was clearly posited as a potential site of conflict for the town of Inuvik and for the future relationship between beneficiary and non-beneficiary citizens of the municipality.

Concerns of this nature were expressed in a letter to then-mayor of Inuvik, Cynthia Hill. By the early 1980s, Inuvik—a mixed community established in the 1960s as the regional hub of the

Beaufort Delta region in the northern Northwest Territories—faced an uncertain future in a changing territorial space. Concerns were raised with respect to how a finalized land claim might undermine the political and social fabric of the town’s community, through the creation of various Inuvialuit organizations. Indeed, “in some respects, a parallel government is being established. However, it will be an exclusively Inuvialuit organization” that would challenge the authority of the municipal government locally (Boyer 1980; p. 3). This development posed several potential threats for the municipal government in Inuvik, and for the governance of the locality and region more broadly. The creation of Inuvialuit institutions alongside public municipal institutions would not only create “potential for tension in governing… between

Inuvialuit and non-Inuvialuit” (Boyer 1980, p. 3), but also spur potential tensions and a democratic crisis within the Inuvialuit community itself. How these two institutional pieces— public institutions and Indigenous institutions—fit together was a matter of considerable concern.

In addition to the worry that these new ‘ethnic’ organizations would ultimately be incongruent with the existing institutions of public government (including municipal

-164- governments) and institutions of public governance (such as regulatory boards), the GNWT had apprehensions regarding the future tensions that institutional development of this nature could foster between Indigenous nations. In a briefing document to the federal government, the GNWT noted that “the experience with COPE would seem to indicate that any claim with one native group which creates an ethnic hegemony over a large geographic area will inevitably lead to conflict” (GNWT 1979b; p. 2). Some of this concern was rooted in problems associated with competing Indigenous claims over the same tracts of land (questions of overlap), however, additional concerns were raised over the temporal nature of the negotiation process. The tiered nature of federal negotiations (and the fact that the federal government would only negotiate with up to six groups at any one time)86 meant that some nations would complete negotiations, gain land ownership and financial resources, and create new institutions well in advance of other

Indigenous nations. For example, the momentum of the Inuvialuit claim, combined with the political stalemate over the stalled Dene claim, meant that, in the medium-term, the “Dene of Ft.

McPherson, Arctic Red River, Aklavik, and Inuvik [broadly speaking, the Gwich'in population] without a claim or subclaim will be left out of negotiations with industry on project terms and conditions. This will cause a situation whereby COPE will be significantly involved with a

Beaufort development and the other non-claimants will feel at a disadvantage” (Connelly 1985; p. 3). In addition to conflict over specific land claims, the GNWT raised the specter of future institutional conflict between native organizations (and thus native nations). By associating institutional creation with Indigenous nations, several potential sites of tension were invoked.

Although there are discrete Indigenous nations in the Northwest Territories, reinforcing these

86 This was true up until 1991, when the federal government opened the process to all Indigenous nations without historic treaties. Meanwhile, some claims moved forward rapidly due to external pressures (like development interest) and political pragmatism, while others dragged (Alcantara 2007; GNWT 1979a).

-165- divisions through institutional creation could “prejudice the interests of the non-beneficiary group” (GNWT 1979b; p. 10) by excluding these individuals from new decision making processes. Meanwhile, the different land claims were naturally endowed in different ways. While some regions, like the Inuvialuit region, have significant oil and gas resources, other regions do not have significant revenue potential. In the absence of creating a mechanism to redistribute resource endowments, the “inequitable sharing of resource revenues” opened up yet another source of potential conflict (Murray 1977, p. 4).

Though the concerns raised here are over 30 years old, their implications have persisted.

Although the Gwich’in First Nation went on to finalize its claim in 1992, the Northwest

Territories still sees considerable variation in the status of outstanding claims. Several nations have no finalized land claims, some have land claims but no self-government (including the

Inuvialuit and Gwich’in), and others have both land claims and self-government agreements in place and being implemented. As well, some Indigenous governments and organizations receive federal money through the new devolution agreement (2014), while others do not because they have not signed on (Sabin 2017). Thus, these concerns regarding the asymmetry of political and institutional development remain as an important potential factor shaping contemporary politics in the NWT.

5.4 The Implications of Institutional Design: Alaska

Just as Canada reviewed its Official Policy in the 1970s, Alaska turned a critical eye to the decision to address Indigenous political conflict through the implementation of modern land claims in the 1980s. Unlike Canada’s Official Policy of Negotiation, ANCSA created new institutions of self-rule only through the development of community and regional corporations.

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Like Canada, beneficiary status within a land claims organization required Indigenous/Native status, and the creation of the ANCSA regions often split distinct Indigenous national groups across several of the regional corporations.

In the decade following the ANCSA implementation, corporate ‘successes’ were limited.

Several of the regional corporations immediately lost money on bad ventures (Hirschfield 1992;

GAO 2012), and the economic promise of Alaska Native land ownership was slow to develop, as major projects are by their very nature long-term and capital-intensive. Thus, in the decade following ANCSA’s implementation, very little changed for the Alaska Indigenous population, which continued to struggle economically. By the early 1980s, although some small-scale changes had been made to ANCSA, the full effects of the legislation had not been comprehensively studied. Certainly, there was a general sense that the legislation was lacking in several ways. ANCSA failed to create any other forms of governance, self-rule or shared-rule.

Although the Alaska Native Federation had lobbied hard for the establishment of non-profit organizations to manage health and social services, and for Native involvement in subsistence and environmental management, those issues were left unaddressed by the legislation.

For the components of governance it had introduced, ANCSA was also highly restrictive.

The Alaska Federation of Natives lobbied for amendments that would allow for greater corporate governance decision making and flexibility, including for the ability of Alaska Native corporations to merge the community and regional corporations and assets. On a parallel track, the AFN also continued to advocate for native subsistence rights and guaranteed Native access to subsistence resources through the passage of the Alaska National Interest Lands Conservation

Act (ANILCA) in 1980. However, while these efforts were successful, the outcomes were

-167- piecemeal and failed to address the true scope of ANCSA’s impact on the political and economic life of Alaska Natives.

In 1983, the Inuit Circumpolar Council commissioned Justice Thomas Berger—five years after the Mackenzie Valley Pipeline Inquiry in the Northwest Territories—to lead the Alaska

Native Claims Review Commission, a review of the ANCSA legislation, its shortcomings, and solutions for the future. At the center of the inquiry were questions about how ANCSA had reshaped Alaska and the experience and opportunities of Alaska Natives. In the lead-up to the commission, Justice Berger reflected on the implications of ANCSA. He was particularly drawn to questions regarding how the new ANCSA institutions might work to affect the structure of conflict within the State of Alaska, both between Indigenous and non-Indigenous peoples, but also within the broader Alaska Native community.87

As in the case of Canada, concerns were duly raised regarding: (1) the institutional move towards national or cultural fractionalization; (2) the creation of institutions incongruent with both the American political tradition, on the one hand, and with the traditional institutions of

Indigenous governance on the other; and (3) the potential for increased tension fostered by the creation of the new institutions of governance.

5.4.1 The Fragmentation of the National/Cultural Group

In Alaska, the implementation of ANCSA and the ANILCA legislation that followed divided and classified lands that had, for generations, been undivided and unclassified (Berger

87 There are important differences in the source material of review process. Whereas the review of the Official Policy of Negotiation in Canada was primarily mediated through bureaucratic channels (an internal review process), the review of the Alaska Native Land Claims occurred primarily in a public venue. These differences have implications for who was involved in the review process. Nonetheless, broadly similar themes emerged from both reviews.

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1985; p. 71). The legislation placed new territorially bounded identifiers on top of the Alaska

Native population. However, unlike the ‘small regional groups’ that the Canadian federal government was willing to negotiate with, the creation of regional corporations in Alaska did not fall clearly along tribal or cultural lines. Instead, the regional corporation constructed a new identity for Alaska Natives, to be held simultaneously with other identifiers.

If you were an Alaska Native (likely Inupiat) residing in the Northwest Arctic region,

ANCSA created a new regional corporation (NANA) and made you a shareholder; if you were an Alaska Native (likely Haida, Tlingit, or Tsimshian) in Southeastern Alaska, ANCSA made you a Sealaska shareholder. Thus, the creation of the new regional shareholder identification was not only mixed in with more superficial identities—such as ‘Alaskan’ or ‘Alaska Native’—it was also held in contrast with deeper national and local identities associated with being a tribal member tied to a village setting and linked with a cultural or national community. In some cases, the identities fit one another, with limited contradictions. If you are a tribal member within a tribal organization, you are also an Alaska Native. Other identities do not overlap so clearly. For example, if you are a NANA shareholder, you are most likely Inupiat, but you may not necessarily reside within the Northwest region or belong to a local tribe. Testimony during the

Alaska Native Claims Review Commission highlighted the implications of these dynamics more fully:

The first result of the settlement act was to separate all the people that used to be together. Everybody became distinct different villages. Regions became different regions. Some regions even split in half just so that they would get their own control. That was the first indication of what was to come. Boundaries were fought over, whereas two groups of Natives or two villages, who never had a problem before, they start fighting over the boundaries.

John Wick (as cited in Berger 1985; p. 33)

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Unlike Canada’s model of institutional creation that increasingly tied Indigenous national identity to new governance organizations, on balance, the ANCSA legislation disaggregated national identity from institutional development. Rather than building on the limited reach of tribal entities within Alaska, the creation of regionally bounded institutions of corporate governance had the effect of splitting apart groups into different regional bodies (in some cases) and combining disparate Indigenous populations under new institutions (in other cases). This phenomenon can be discerned from the regional population breakdowns provided in a 1971 report that looked at the regional corporation models being proposed through the ANCSA legislation:

Table 5.1: Regional Population Diversity by ANCSA Region (1971) Indigenous Heterogeneity Regional Heterogeneity Twelve AFN Regions % Indian % Eskimo % Native % Other Cook Inlet Native Association 39.1 60.9 4.4 95.6 Chugach Native Association 20.8 79.2 12.5 87.5 Tanana Chiefs Conference 81.7 18.3 10.6 82.3 Copper River Native Association 87.5 12.5 24.1 75.9 Tlingit-Haida Central Council 90.1 9.9 19.6 80.4 Bristol Bay 9.2 90.8 65.4 34.5 Kodiak Native Association 5.5 94.2 20.5 79.5 Aleut League 3.0 97.0 23.3 76.7 Association of Village Council Presidents 2.3 97.7 89.1 10.9 Bering Strait Native Association 0.4 99.6 77.9 22.1

Arctic Slope Native Association 0.4 99.6 85.1 14.9 Northwest Alaska Native Association 0.2 99.8 86.4 13.6 Low Indigenous High Regional

Heterogeneity Homogeneity

Although the above data utilize only very thin measures of identity (Indian vs. Eskimo), we can observe two related implications of the intersection of institutional creation with Indigenous identity. On the one hand, some populations are split among several regional bodies. An example is the Inupiat population that was separated primarily into three regional corporations: the Bering

Strait Regional Corporation, the Northwest Alaska Native Association (NANA) Regional

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Corporation, and the Arctic Slope Regional Corporation. However, the use of these thin descriptions of identity masks at least some of the heterogeneity present in the seemingly more homogenous regions. To use the Bering Strait region as an example, although the region itself is majority ‘Eskimo’ as defined by the rough definition of the 1970s, it is in fact “one of the most culturally diverse regions established through the Alaska Native Claims Settlement Act” (Bering

Straits Native Corporation 2017). The region has three distinct Indigenous languages—Inupiaq,

Siberian Yup’ik, and Central Yup’ik—and pulls together Indigenous populations with diverse cultural histories and subsistence lifestyles.

The creation of Bering Straits region speaks more broadly to the dynamics at play in

Alaska, and the way in which institutional creation has interacted with Indigenous national identity in Alaska since ANCSA. For most of the newly created regions, the ANCSA legislation grouped together distinct national identities under the same organizational structure. One of the most diverse regional corporations is the Cook Inlet Region, Inc. (CIRI). While the early inhabitants of the Cook Inlet region were primarily of Dena’ina and Ahtna descent, the CIRI region encompasses Anchorage, the urban center of Alaska. Many Alaska Natives from other parts of the state who were living in Anchorage during the ANCSA period subsequently enrolled with CIRI as shareholders. As such, the shareholder population is a diverse mix of Indigenous nations within Alaska, including Athabascan, Inupiat, Yup’ik, Southeast Indian, Aleut/Unangax, and Alutiiq/Sugpiaq nations (Cook Inlet Region, Inc. 2016). In most cases in Alaska, the regional models worked to bring together disparate Indigenous nations under single institutions, resulting in institutions charged with overseeing and responding to much more heterogeneous Indigenous populations than those that emerged in the far north (primarily Inupiat). While the institutional form disaggregated institutional development from national or cultural group identities, the

-171- groups that were created have nonetheless engaged in discursive processes of identity formation, building off the institutional form to either reinforce thin conceptions of identity (primarily

‘Alaska Native’ identities tied to their unique cultures and histories) or thicker conceptions of identity (more ‘national’ identifiers in regions where the Alaska Native population is more homogenous).

5.4.2 The Development of Incongruent Institutions

As the first foray into modern land claim agreements, the core of the Alaska model is uniquely corporate—much more so than the hybrid models that emerged in the Canadian North.

ANCSA regional corporations oversee collective Indigenous title over land and organize land management and economic development under the mandate of private institutional bodies.

As in Canada, the regional and community corporation—as a model of governance—did not necessarily align with the political or governance goals of Alaska Natives. The corporate model ensured the large-scale transfer of land rights to Alaska Native organizations, but the legislation also explicitly ignored Indigenous tribal governance that was emerging—or which was, in some cases already institutionalized—throughout the state. The creation of the community corporations undercut the local tribal entities in two key ways. Firstly, the community corporations duplicated the governance of small and (often) geographically isolated communities, splitting governance duties between multiple organizations. Secondly, and more importantly, the community corporations shifted the available resources away from tribal entities. The surface land rights that would have otherwise been patented to local tribal organizations for management instead belonged to the community corporations created through

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ANCSA. As a result, the federal government limited the lands available to village tribal governments created through the federal IRA legislation.

With the limitations placed on new tribal governments, and the relatively limited presence of IRA governments throughout the state in the 1970s, many Alaska Native

‘shareholders’ turned their expectations for Indigenous self-government onto the newly created regional corporations. Native Alaskans expected these new regional institutions to act in a governmental or quasi-governmental role, and to engage in political activities and/or deliver social services (Berger 1985; p. 38). However, these activities run counter to the legislatively mandated role of the ANCSA corporations, with government responsibilities over social investment often running up against the dominant corporate goal of profit maximization.88

Perhaps the most profound consequence of incongruence between Native expectations of corporate governance and the latter’s mandate, however, was to reshape the relationship between

Indigenous peoples and the land they had fought so hard to maintain. Above all else, Alaska

Native ‘shareholders’ “expected the regional corporations to protect traditional ways of life and ancestral lands used for subsistence” (Berger 1985, p. 10). However, like the expectations regarding quasi-governmental status, these expectations ran counter to the internal mandates of regional corporations. The corporate governance model fundamentally altered the relationship to the land. The land, and particularly the subsurface lands, was the only true source of economic growth for the regional corporations. In one of the commission hearings, Nome resident Mary

Miller highlighted this tension. She noted that for the regional corporations to achieve economic gains, they “would have to assume a position of control over the land and the resources and

88 Despite the fundamental incongruence between the regional corporate institution and the Alaska Natives’ expectation that these institutions could fulfill a government-like role, some corporations did in fact build this type of quasi-governmental role into their institutional structure, a feature that will be explored in greater depth in the next section.

-173- exploit those resources…. This is in conflict with our traditional relationship to the land, we were stewards, we were caretakers and where we had respect for the resources that sustained us”

(Mary Miller, Nome – as cited in Berger 1985, p. 120). Although several corporations shied away from resource development, particularly early in their institutional lives, corporation leadership quickly found that building wealth for their shareholders and creating jobs for their shareholders meant participating in the principal activities of the Alaska economy—namely, mineral exploration, oil and gas development, and other major resource-based projects.

The corporate model of governance has had implications for the types of inter-group, and intra-group politics that have emerged over time. Indigenous regional corporations must contend with competing interests, adhering to their institutional mandate in ensuring the long-term success of the corporations while also providing tangible outcomes—either through direct employment or dividends—for their shareholders (who are also citizens and co-owners under collective title).

5.4.3 The Institutional Potential for Conflict

The transformation of Alaska Natives’ nations and tribal members into Alaska Native corporations and shareholders had implications for individual preferences as well. The transformation ultimately reshaped the relationship between Alaska Native peoples and the land that they relied upon for their subsistence and livelihoods. As shareholders, Alaska Natives moved from being land-protectors to landowners; the introduction of the corporate governance model changed the economic value of the land from one of subsistence-based economic development to one of market-based economic development. Individual/group preferences for cultural and environmental sustainability may directly conflict with the individual/group

-174- preferences for short-run economic (market) successes held as a shareholder in a newly created corporate entity. Short-run economic success is only possible through large-scale economic development, and for regional corporations, economic development is intrinsically tied to the exploitation of the land resources that they hold.

Although the legislators directing the ANCSA settlement process took pains to ensure that tensions between economic and cultural/environmental sustainability goals would be minimized during implementation and into the future, the success of those efforts was spotty. To minimize disputes over resource development, the ANCSA legislation specifically accounted for potential regional disparities in resource endowments, building in a resource revenue sharing mechanism between the regional corporations through Section 7(i) of ANCSA. Section 7(i) of

ANCSA is known colloquially as the ‘sharing provision.’ It held that certain types of resource revenues would be shared amongst all the regional corporations on an annual basis. In essence,

Section 7(i) “was intended to achieve a rough equality in assets among all the Natives…[and ensure] that all of the Natives will benefit in roughly equal proportions from these assets”

(Chugach Natives, Inc. v. Doyon Ltd. 1978). To that end, the ANCSA legislation required that 70 per cent of all revenues from subsurface resource development (including mining and oil and gas development) and surface timber resources be distributed among all regional corporations on a per capita basis.

Legislators further anticipated that tensions might arise with what was known as the ‘split estate’: the division of surface rights to community corporations and subsurface rights to regional corporations. To manage the fact that the village corporations would not receive any subsurface rights (thus curtailing their ability to access the market economy through resource development),

ANCSA legislators created a specific clause (the 7(j) clause) requiring that 50% of the 7(i)

-175- receivables (the proceeds from subsurface development in other regions) be redistributed from the regional corporations to their village corporations. Thus, under this model of redistribution, the village corporations receive 35% of all profit generated from resource development activities

(including mining, oil and gas, or timber development) on ANCSA lands (Bering Straits Native

Corporation 2017)

Despite these legislative attempts to smooth sites of conflict, and the fact that the legislation itself noted “the settlement should be accomplished rapidly…without litigation,” implementation led to several lawsuits on the 7(i) and 7(j) redistributive clauses. The newly created regional and village corporations capitalized on a general lack of clarity regarding the scope of the two sharing clauses to solidify or protect their newly acquired financial and land resources. The lack of clarity, combined with a natural unwillingness to share profits between groups, led to a host of protracted legal battles in the years following implementation. Legal challenges covered a range of matters including “the delineation of land-selection boundaries between regions, eligibility of villages for certification as village corporations; shares of revenues from the sale of timber and mineral resources; and, of course, proxy battles within the corporations themselves” (Berger 1985; p. 31).89

The legislation also opened potential sites of conflict within the newly formed regions

(and between the shareholders themselves). The legislation drew distinctions between shareholders who lived within the region at the time of settlement, and those who did not (termed

‘at-large’ shareholders). Individuals living within the region could also opt to become ‘at-large’

89 See Aleut Corp. v. Arctic Slope Regional Corp., 410 F.Supp. 1196 (D. Alaska 1976); Aleut Corp. v. Arctic Slope Regional Corp., 417 F.Supp. 900 (D. Alaska 1976; Doyon, Ltd. v. Bristol Bay Native Corp., 569 F.2d 491 (9th Cir. 1978); Aleut Corp. v. Arctic Slope Regional Corp., 421 F.Supp. 862 (D. Alaska 1976); Chugach Natives, Inc. v. Doyon Ltd., 588 F.2d 723 (9th Cir. 1978); Aleut Corp. v. Arctic Slope Regional Corp., 484 F.Supp. 482 (D. Alaska 1980).

-176- shareholders, receiving shares in the regional corporation, but not associated with any given village corporation (NANA Regional Corporation 1978b; p. 5). The differentiation in status meant differentiation in stock benefits based on those initial designations, and in perpetuity. ‘At large’ shareholders receive a portion of the 7(j) funds based on the per capita formula. This means that, in general, at-large shareholders consistently receive more direct dividends than village-corporation shareholders, as the village corporations tend to favour reinvestment of 7(j) funds over direct dividend distribution to village corporation shareholders (NANA Regional

Corporation 1983b). These differences in shareholder designation go beyond questions of individual economics, as they have important governance implications. Each regional corporation can choose the design for shareholder representation on its board of directors, and there is considerable variation with respect to how the ‘at-large’ shareholder is represented within the organization.90

Not only were economic benefits thus paid out differently among stockholders in the same regional corporation, certification as a stockholder in the regional corporation was a discrete cut-off. To become an Alaska Native shareholder in a regional and/or village corporation, an individual had to be of one-quarter Alaska Native blood and prove a connection to Alaska (based on residency in 1971, past residency, place or birth, or family heritage). Alaska

Natives born after December 18, 1971 could not become shareholders in ANCSA, except through inheritance. This third site of differentiation—inheritance—introduces a generational cleavage within Alaska Native politics. For those who receive(d) shares through inheritance, shareholder status can become diluted over time as the original allocation becomes divided

90 For example, the NANA region treats the at-large shareholders as equal relative to in-region communities: like the 11 communities, the at-large population elects two representatives to the board of directors (for a total of 24). In the North Slope, the largest community (Barrow) elects five board members; each of the smaller communities elects one board member each; and at-large shareholders are reserved three seats on the board.

-177- among siblings of the next generation. Following amendments to ANCSA in 1988, some regional corporations voted to universally dilute the shareholder pool to include the ‘afterborn’ population (Alaska Natives who were born after the legislation was enacted, and who are not automatically included as shareholders). This mitigates the generational divide in some cases, but only a few corporations have taken this action.

Justice Berger highlighted these three themes regarding national-cultural fractionalization, incongruent institutions, and the potential for increased tension—in the lead-up to the Alaska Native Claims Review Commission. In a document drafted in advance of the community consultations that outlined some of the expectations of the commission, Justice

Berger identified a core group of ‘cleavages’ that placed the success of the ANCSA corporations at risk (Berger 1985). He included:

- Alaskan vs. Non-Alaskan (environmentalists vs. corporations);

- Directors vs. Shareholders;

- Profit vs. Environmental Protection Goals;

- Region vs. Village;

- Shareholder vs. Shareholder;

- Region vs. Region (corporate revenue sharing, 70/30 split, 7(i));

- Subsistence vs. Economic Development Goals;

- Village vs. Village; and

- Village vs. Urban Areas

Though Alaska Native groups had already begun to create ad hoc institutions to meet specific policy goals or transform the ANCSA institutions to fill in governance gaps, at the time of the

Native Claims Review Commission, the regional corporation remained one of the few

-178- substantive vehicles through which to assert Native rights in Alaska. The cleavages that Berger identified in 1985 constitute only a fraction of the potential cleavages possible under the more complex and layered system of governance that exists throughout northern North America today.

Indeed, the introduction of new institutions—or the strengthening of existing ones—has only exacerbated these cleavages by imbuing some actors/groups (and not others) with greater political power within the governance framework.

In highlighting these various cleavages, Justice Berger drew attention to an important outcome of processes of federalization. The creation of new institutions acts to construct new identities, and layer multiple identities on top of one another so that multiple identities are held simultaneously.

5.5 A Framework for Institutional Design and Contestation

As highlighted by the discussion above, the creation of new governance institutions can reinforce existing identity frameworks, and/or it can help construct new identities. Institutions that are created to address the political goals of national minority populations, and particularly those which set about to define benefits, necessarily create insiders and outsiders—they define those who ‘belong’ and those who do not. In so doing, institutional creation can reinforce overlapping identities which shape individual and group preferences, and which ultimately compete for supremacy. Conflict arises when identity construction corresponds with different or conflicting priorities. Such conflicts can be illustrated in the case of institutional creation through modern land claim agreements. The creation of the ‘shareholder’ identity through the creation of the regional corporation may create a preference for resource development. The regional corporation has a mandate to build wealth within the corporation and to distribute dividends to

-179- its Native shareholders. Thus, it can use resource development as a means of securing economic resources for both the group as a whole (the creation of economically strong regional corporation) as well as for the individual, through economic distribution associated with shareholder dividends. However, this new identity as ‘shareholder’ and its associated preference for resource development may conflict with other concurrent identities. As a tribal member located in a village that depends on a subsistence lifestyle, resource development may pose a distinct and immediate threat to the maintenance of traditional lifestyles. As such, these two simultaneous identities—shareholder vs. tribal member—and their corresponding priorities are intrinsically in conflict. It is in the interest of the individual (and the group) to favour resource development and subsistence simultaneously, though an individual may end up associating with one identity (or a range of priorities) over and above their other competing identities (or priorities).

All the potential cleavages identified by Thomas Berger are salient in the Canadian case as well. However, due to the variation in how interests are organized, some of these conflicts are more likely than others in Canada as compared to the United States. For example, the creation of the regional corporations—and thus the regional boundaries to which most governance bodies today adhere within Alaska—disaggregated Indigenous national identity from the subsequent institutions of governance. This is not to say that the institutions are not linked to minority group identity, as shareholder status in a regional corporation is restricted to individuals who are recognized as ‘Alaska Native’ (a designation that is ‘cultural’ rather than ‘national’ in specification). However, the disaggregated identity effect of Alaska governance bodies stands in contrast to the institutions of modern treaties in northern Canada, which progressively moved

-180- towards the creation of organizations tied to distinct Indigenous national identities (i.e.

Inuvialuit, Gwich’in, and Tlicho).

Because he was investigating the political implications of ANCSA as it related primarily to Alaska Native groups, most of the sites of potential conflict identified by Justice Berger could be characterized as conflicts between horizontal actors: cleavages that occur between individuals/groups that are imbued with (largely) the same rights and privileges, as laid out by negotiated/legislated agreements. One shareholder, in principle, has the same rights/privileges as another shareholder within a regional corporation; one corporation, in principle, has the same rights/privileges as another corporation under ANCSA. However, the principles of equality can be undermined by important differences that exist in practice; for example, one land claim group may be significantly better resourced because of mineral or oil deposits than another. Justice

Berger’s focus on horizontal cleavages—within and between groups—overlooks the vertical cleavages between orders of governance and/or government cleavages that come from being part of a federal structure. As such, we can expand upon Berger’s initial list to consider a more comprehensive framework of potential conflict:

Figure 5.1: Potential Sites of Conflict

Horizontal Cleavage Vertical Cleavage

*Shareholder – Shareholder C C *Citizen – Shareholder

*Indigenous Govt. (L) – Indg. Govt. (L) I C *Shareholder – Leadership Group

Group Regional Corp. – Nonprofit Assoc. I I Village – Regional Corp.

- -

Regional Corp. – Regional Govt. I I Village – Nonprofit Assoc. Intra

Intra Regional Govt. – Nonprofit Assoc. I I Village – Regional Govt.

Shareholder – Non-Shareholder C C Citizen/Shareholder – Leadership

Alaskan – Non-Alaskan C I Indigenous Govt. (L) – State/Terr. Govt. Group

Group Indigenous Govt. (L) – Municipal Govt. I I Indigenous Govt. (R) – State/Terr. Govt.

- -

*Regional Corp. – Regional Corp. I I Indigenous Govt. (L) – Federal Govt. Inter Inter *Indigenous Govt. (R) – Indg. Govt. (R) I I Indigenous Govt. (R) – Federal Govt. *Cleavage identified by Berger C = citizen conflict / I = institutional conflict (L) = Local governance organization / (R) = Regional governance organization

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The creation of new institutions represents an attempt by the state to recognize minority nations and modulate the traditional sites of conflict. In recognition of this intent, it is expected that the development of new institutions will shift the sites of conflict into new forms, depending on the design and implementation of the new institutions. The figure above shows some of the potential sites of cleavage that are possible since the finalization of modern land claim agreements. Which sites of cleavage dominate the resultant patterns of contestation, however, may depend on the make-up of group membership, the governance space that institutions occupy relative to the population, or the interaction between institutions that seek to represent part or all of the same population. As such, this framework is simply an exploration of the different ways conflict might re-emerge in the multinational model of federalism.

5.6 Controlling for Cross-National Variation: Case Selection in Alaska and the NWT

The preceding section shows that despite the differences in institutional design, similar concerns arose in both the United States and Canada regarding the nature of potential conflicts that implementation might bring. Both the GNWT and Berger explorations focused on two potential ways in which new institutions could affect the management of conflict: (1) the first relates to questions of national group identity (and the way in which institutions reinforce or undermine minority nations, and affect how individuals identify themselves within or against that identity); (2) the second relates to how institutional consolidation/fragmentation shapes individual or group preferences, and affects how groups organize for political action.

Both variables—identity and fragmentation—affect how institutions shape the group(s) and individuals they represent. Institutional fragmentation, in the form of plural parallel institutions, has the effect of creating several (and at times conflicting) definitions of insiders and

-182- outsiders, and may result in different priorities being divided across the mandates of several distinct institutions. The division of economic and social mandates across a variety of institutions can influence the way in which local voices engage on pertinent political issues. If government roles, such as social service provision, are separated from revenue streams or economic mandates, the mandates of the different institutions themselves may come into conflict.

Institutions, particularly those that define benefits, necessarily create insiders and outsiders— they define those who ‘belong’ and those who do not (Tully 2000; Schertzer 2016). The politics of recognition and associated conflict is not so much about narrow or thin arguments about redistributing power, but rather the deeper question of how identities are recognized (or not) and how this structures debates, policies and institutional choices to either reflect or deny particular identities as validly part of the polity (Tully 2000; Schertzer 2016).

On the specific characteristics of governance and organizational design, the key variables of interest are the degree to which institutions of governance are tied to indigenous national identities (low/high), and the degree to which governance roles and responsibilities are consolidated among the institutions of governance (low/high). Capturing the variation of these two factors is challenging for several reasons, but particularly because the operation of governance today does not necessarily reflect the foundational legislative or negotiated agreements that created the institutions thirty plus years ago. Several of the regions of interest have undertaken ad hoc actions that either increase the relative connection between institution and national identity, and/or increased the relative coordination between regional (or regional and local) organizations. Although these actions move institutions in one direction or another (in terms of links to national identity or greater institutional consolidation or fragmentation), ad hoc attempts to shift these factors in the governance framework are not as effective as institutionally

-183- mandated connections.

To tease apart these factors, I coded all the potential regions of interest along each of these variables. In the case of Institutional Fragmentation, the final coded score reflects an average of institutional coordination between local organizations and their regional counterparts

(such as the representation of community corporations within the board of the regional corporations), and between regional organizations and other regional organizations (including formal or informal cooperation between regional corporations and regional governments).91 In the case of Institutional Identity, the final coded score reflects an average of identity disaggregation (the extent to which institutions divide singular nations across several different groups/identities), identity consolidation (as measured by the extent to which institutions combine several distinct Indigenous nations under a single institution or newly constructed identity), and institutional identity (as measured by the extent to which institutions integrate identity into the organizational or institutional mandate). For the full coding scheme and breakdown by region, see Annex I on pages 324-327).

Based on the coding of these two variables, the most-similar regions are the NANA

Region and the North Slope Region (Alaska), and the Inuvialuit Settlement Region (in the

Northwest Territories and part of Yukon Territory) and the Gwich’in Settlement Region (in the

Northwest Territories):

91 Few, if any, examples of formal or informal linkages between local organizations (such as the local tribal government and the local community corporation) appear to exist. As such, I assume a score of zero across all cases.

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Figure 5.2: Case Selection Along Two Variables – Institutional Identity & Fragmentation

7 ISR Tlicho 6 Gwich'in 5 Arctic Slope 4 DehCho NANA Tlingit-Haida 3 Sahtu Alaska NWT

2 Institutional Identity Institutional 1

0 0 1 2 3 4 5 Institutional Fragmentation - Consolidation

Despite differences in institutional structure, these regions ultimately sit close together based on institutional coordination and the consolidation of deeper ties to an Indigenous national identity in the institutional framework.

In addition to their cross-case similarities on institutional coordination and institutional identity, two other factors strengthen the comparison. First, on demographics, the four regions of interest have majority Indigenous populations, enabling Indigenous leadership and management in multiple governance venues. Three of the four regions (Inuvialuit, NANA and North Slope) are majority Inuit regions, with a population base with similar cultural, historical, and linguistic characteristics. While the Gwich’in stand somewhat apart culturally, they have a longstanding relationship with the Inuit. All four groups/nations live above the Arctic Circle, with a strong reliance on subsistence economies, including hunting, fishing and whaling as part of their local economies.

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Second, on the timing of institutional creation, the choice of the four regions addresses—as best as possible—variation in the timing of modern land claim agreement implementation, privileging those who settled first. Newly created institutions take time to establish themselves within the governance framework. They evolve over time in response to the political and contextual factors within which they are generated, and similarly, their institutionalization shapes the dynamics within a region (shifting priorities, establishing hierarchies, or generating new constituencies). Unlike the case of Alaska, which engaged in the simultaneous settlement of

Alaska Native land claims via ANCSA and saw Alaska Native populations rapidly adopt complementary governance institutions through other venues, modern treaties in Canada remain a work-in-progress. The selection of the Inuvialuit and Gwich’in regions assist in this regard.

The Inuvialuit Settlement Region (ISR) came into being in 1984, followed by the Gwich’in

Settlement Region (GSR) in 1992 with the finalization of negotiated land claims agreements.

While both the Inuvialuit and Gwich’in still lack modern self-government agreements, the two

Indigenous nations have increased their governing autonomy by expanding the institutional framework to take on new policy roles, including income redistribution and some aspects of social policy (like training and education). Both have longstanding institutions of Indigenous regional governance that oversee the implementation of the land claim agreement, manage local land and economic resources, and act in expanded governance roles within their respective regions.92 Because neither group has finalized self-government, both the Inuvialuit and Gwich’in have frequently turned to ad hoc or informal approaches of expanding the institutional mandates of the existing governance framework (Wilson and Alcantara 2012). In this way, they are again

92 It may be the case that in another 50 years, the benefits of being a first mover will be fully realized; early movers on land claims (like the Inuvialuit) accrue power and resources earlier, and can thus secure better outcomes. For the moment, however, static measures of autonomy suggest that the process of negotiation favours the later players.

-186- more similar in their form and nature to the ANCSA agreement than the groups that negotiated more comprehensive claims agreements under the broader policy post-1995. Moreover, these early movers are the most promising to study under an institutional lens as they have had the most time to mature, and thus have had the most time to reshape the structures and incentives of local, regional, and federal politics.

While the rationale for case selection was laid out in chapter one (see pages 12-13 and 17-

18), the next two sections of this chapter focus on the ways in which informal institutional change, which has been pushed forward by Indigenous leadership, has strengthened the most- similar case design. In both Alaska and the Northwest Territories, there are examples of

Indigenous leadership using creative mechanisms to reinforce or dampen the institutional outcomes of the negotiated (Canadian) or legislated (United States) processes. This next section focuses on two such examples. First, I explore how the political leadership in the NANA region worked to imbue the regional corporation with a stronger link to the region’s cultural history as an Inupiat region. Facilitated by the fact that the creation of the NANA region through ANCSA corresponded to a highly homogenous Inupiat population, the political and corporate leadership within the region built stronger linkages to that identity through informal, discursive processes of

‘building in’. In addition to these institutional changes, the NANA region also aimed to dampen other potential sites of cleavage, including between local and regional corporations, and between generations. Second, I explore the case of the Inuvialuit region, the ways in which features of the

Inuvialuit identity are built into regional institutions through formal mechanisms, and the attempts by Inuvialuit leadership to move toward a more fragmented form of governance (as a compromise for an expanded governance role in the Western Arctic region).

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5.6.1 Institutional Identity in Alaska: Processes of “Building In”

Alaska has several distinct Indigenous nations residing within the state, including the

Inupiat, Yupik, Tlingit, Haida, Tsimshian, Aleut, Eyak, and several northern Athabascan nations.

Yet, despite the diversity of Indigenous Alaskans with respect to their language, culture, and history, the institutions created through the ANCSA legislation and through state and federal laws since 1971 are not distinct with respect to national-group identities.93 In comparison to the institutions of governance that have emerged in northern Canada, most of the institutional development that has occurred since ANCSA is tied to ‘thinner’ group identities. The latter include thin descriptions such as “Alaska Native,” as well as the newly created identities (i.e.

CIRI shareholder) that have been added to geographic, rather than national, distinctions.

ANCSA’s attempt at divorcing Indigenous national groups—including the splitting apart and/or the merging together of distinct nations among several new regional creations through institutional design—has not entirely diluted the governance system of national Indigenous identities. Even though ANCSA disaggregated Indigenous national identities from the corporate institutions created through the legislative process, several regions have engaged in discursive processes of ‘building-in’ identity to their otherwise ‘non-ethnic’ or non-‘nationally-bounded’ governance institutions. The ability to engage in such identity building processes was made possible by the presence of important contextual factors: the two northernmost-regions created under the Alaska Native Claims Settlement Act—the Arctic Slope region and the Northwest

Arctic Native Association (NANA) region—are characterized by a high degree of population homogeneity, and most residents identify with one Indigenous national group (Inupiat/Inupiaq).

93 There are a few exceptions. Regional tribal entities do exist in some cases, including the Inupiat Community of the Arctic Slope and the Central Council of Tlingit and Haida Tribes of Alaska (a regional tribal entity established in 1935, which brought together two separate Indigenous nations under a single governing council).

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In these homogenous regions, Alaska Native leaders could utilize the institutional framework to reinforce deeper diversities, namely, the Inupiat national identity. Following the implementation of ANCSA, Inupiat leadership in both NANA and the North Slope could work to advance the coordination between otherwise non-cultural (public) institutions—the corporations, non-profit associations, and public government bodies—and their distinct national identity.

The Inupiat Identity and the NANA Regional Corporation94

We are a small nation of Inupiat living in a larger America. Robert Newlin and John W. Schaeffer NANA Regional Corporation 1984 Following the passage of the Alaska Native Claims Settlement Act on December 18,

1971, twelve regional corporations were organized. The NANA Regional Corporation officially opened for business on July 1, 1972. Unlike most of the other regional corporations, the shareholder population of NANA is highly homogenous, and at the time of ANCSA passage

99.8% of the 4,900 NANA shareholders was identified as “Eskimo,” of which the majority was

Inupiat. Under the provisions of the act, NANA received funds of approximately $61.9 million, and approximately 860,000 square acres of land (subsurface and surface rights) as well as

94 In comparison to the NANA region, the North Slope region of Alaska opted to utilize the borough government as primary site of processes of ‘building in’ Inupiat identity. Like NANA, the North Slope region is majority Inupiat in make-up, though the region’s reliance on oil and gas has resulted in an influx of non-Native residents since the late 1980s. Despite this demographic shift, most of the borough’s council members are of Inupiat descent, and the public regional government was created in such a way to actively integrate and protect Inupiat national identity. The North Slope Borough predates the Northwest Arctic Borough by nearly fifteen years, and was established in parallel to the northernmost Regional Corporation. As such, the Inupiat of the North Slope used the regional borough government as the primary site by which to advance Inupiat national identity. Whereas the Charter for the Northwest Arctic Borough (created in 1986) makes no reference to Inupiat identity, the municipal code of the North Slope Borough government establishes the borough government as “proof that the Iñupiat of the North Slope have succeeded in returning self-rule to their land. After twenty years of home rule, they can proudly point to services in the villages that exist practically nowhere else in the Alaskan bush” (North Slope Borough, Alaska - Code of Ordinances 2017).

-189- subsurface rights to approximately 1.43 million additional acres (NANA Regional Corporation

1973).

The process of ‘building in’ identity to the NANA Regional Corporation began quickly.

In the first annual report from NANA to its shareholders—the 1973 report—the demographic nature of the NANA region—its predominantly ‘Eskimo’ (Inupiat) population—is mentioned only four times in the twelve-page document. By the 1974 report, there has been a clear shift in tone; the introductory page of the annual report provides commentary on the cover page: the image of an Eskimo95 hunter on the tundra:

The Great Hunter: Our cover shows our Eskimo hunter moving aggressively toward a successful future in a vast, beautiful and sometimes harsh world. This is NANA. NANA is all of us together as one hunter, successful if we are of one mind and purpose, hungry if we are split by doubts and mistrust of each other. As one hunter is small and insignificant when compared to our environment so is NANA when compared to the corporate and governmental environment in which it must hunt successfully to survive. The same qualities of courage, confidence, humility, respect, integrity, and sharing with others that have allowed our people to survive as great hunters in a harsh climate are necessary for NANA to be successful. We as stockholders must develop these qualities in our corporation in order to insure its success in the future. NANA Regional Corporation 1974; p. 1

The use of this passage to identify the grounding principles of the NANA Corporation demonstrates the ways in which regional Inupiat leadership began to tie an institution that was otherwise divorced from national identity to the local Indigenous culture. The passage highlights several key ideas, including the importance of remaining unified as a culture and as a people, and the continued fight for resources and authority against other political and governance entities.

95 In the 1993 Annual Report, the language of the mandate was updated to speak more specifically of the Inupiaq identity, changing the identity of the hunter from one of “Eskimo” to that of an “Inupiaq hunter.” Although the annual reports had long switched to speaking of Inupiaq culture and values within the body of the reports, the identity of the hunter was similarly updated in 1993 (NANA Regional Corporation 1993).

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The latter theme—one of fighting for survival against others in a harsh and changing environment—was a continual theme in the NANA corporate documents. In the 1998 Annual

Report, the language was updated slightly, bridging the culture and history of Inupiaq hunters with the contemporary corporate environment: “Our forefathers knew that success in the hunt relies on skill, training, trust and cooperation. This is still true today, in our new hunting-grounds of corporate and government business” (NANA Regional Corporation 1998; p. 1).

In addition to the transformation of the corporate mandate, NANA leadership also sought to solidify its relationship to the Inupiat identity through its business development. Early on in its institutional life, the regional corporation focused heavily on investing in local resources and in the development of culturally relevant businesses. It purchased several small hotels in the region

(primarily in Kotzebue, the largest community in the region) that employed local shareholders, invested in a reindeer herding operation, committed funds toward the development of a Museum of the Arctic, and invested in an artisanal jade mine and processing operation. The latter two investments were aimed directly at community revitalization and sustainable cultural practices, rather than towards meeting a corporate interest on profit maximization. As noted in the 1976

Annual Report, the corporation’s investment in the reindeer herd was not necessarily a commercial enterprise as the investment was “organized as a non-profit entity, to provide a long- range guarantee of meat to area residents” (NANA Regional Corporation 1976a; p. 6).

Though it advanced projects that reflected the interests and wellbeing of the shareholders in a cultural sense, NANA also made clear steps forward to capitalize on the regional economic development related to oil and gas, and the construction of the trans-Alaska oil pipeline. NANA invested in a wide range of companies, including in construction, regional transportation, environmental service, and oilfield service, catering, and security (NANA Regional Corporation

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1976a). Nonetheless, these corporate decisions—particularly early in the life of the institution— reflected the needs and desires of the regional Inupiat population. As the only real governance organization operating in the region, NANA took on a quasi-democratic structure and a quasi- governmental role. The board of directors was elected directly by shareholders, and corporate strategy and decision-making processes relied heavily on the inclusion of shareholder perspectives through village meetings and consultation. The approach made NANA “one of the most democratic, stable, and progressive companies” coming out of ANCSA (NANA Regional

Corporation 1974; p. 2).

By 1980, NANA began to orient even more resolutely around attempts to “develop a new

‘Inupiat Culture’” within the region. The company invested in creating a Shareholder Higher

Education Loan/Grant Program to assist shareholders in obtaining degrees in higher education and invested in several school-based cultural and language programs in partnership with the

Northwest Arctic School District. NANA also funded the development of the Inupiat Ilitqusiat program and training center, aimed at educating young Inupiat within the NANA region in the

Inupiat language and values, including promoting “knowledge of the land, respect for elders, animals, hard work, family and tradition” (NANA Regional Corporation 1982a; p. 10). Through the development of this program, the NANA corporation took the lead on “efforts to reawaken awareness of the Inupiaq spirit” (NANA Regional Corporation 1982a; p. 10). The program was centered in Kotzebue, and for the first ten years operated to teach cultural practices and instill

Inupiat values in the young people of Kotzebue. In 1990, the NANA Board of Directors approved the expansion of the program into all the ten NANA villages—in cooperation with

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Maniilaq and the Northwest Arctic Borough—advancing the preservation of Inupiaq values, language and culture throughout the NANA region.96

Throughout the 1990s, NANA continued to integrate Inupiat identity into the institutional structure of the corporation while pushing what it saw as its dual mandate—addressing both the social and cultural needs of its shareholders while advancing the economic success of the company. NANA leadership was well aware the combination of these mandates under a single organization often meant that priorities conflicted with one another (NANA Regional

Corporation 1996). In 1995, NANA leadership sought to better reflect these goals through a corporate restructuring, a process of change that linked the new institutional structure to the

Inupiat values of “cooperation and sharing” embedded in the Inupiat Ilutqusiat program. In their letter to shareholders, NANA Chairperson Christina Westlake and NANA President Charlie

Curtis wrote that “based on [our] traditional values, we are restructuring NANA to shift the power, authority and influence away from the top and spread it to all levels within the corporation” (NANA Regional Corporation 1995; p. 6). In addition to a redistribution of power within the corporation, the board of directors decided to solidify the formation of two distinct institutions with individual mandates: (i) the NANA Regional Corporation (NRC) to focus on the

Inupiat people of the region, and (ii) the NANA Development Corporation (NDC) to direct the profit-maximization of the company. This restructuring allowed the NANA Regional

Corporation to more clearly define programs and policies directed at making the lives of NANA

96 Highlighting the financial and governance supremacy of the NANA Corporation in the region, the 1992 Annual Report to Shareholders notes that while it continues to fund the program expansion throughout the region, NANA restructured the Inupiat Iliqusiat program “so that each village will take responsibility for success or failure of its own program” (NANA Regional Corporation 1992; p. 9). In doing so, NANA took on the role of a state-like granting agency, setting criteria for program development and ensuring that the local IRA/Tribal Council organizations met certain criteria “including: strong elder support, demonstrated motivation and self-sufficiency, and desire for positive change” (NANA Regional Corporation 1992; p. 9).

-193- shareholders better. Programs included cultural training, language revitalization, scholarships for

NANA students to attend postsecondary institutions, and elders programming, including the introduction of a pension-like system for elders (over 65 years of age) through the creation of the

Elders Settlement Trust in 2008 (NANA Regional Corporation 2008).

Closing Sites of Contestation

Almost immediately following its incorporation, the NANA Regional Corporation looked for ways to consolidate the corporate governance of the region. Following the implementation of

ANCSA, several regional corporations (including NANA) lobbied Congress for minor amendments to the legislation, including one that would permit regional corporations to merge with their village corporations and address concerns over the ‘split estate’. Under ANCSA, the regional corporations controlled the subsurface rights of lands dispersed under the legislation, while villages would control the surface rights of the lands selected.

In 1975, Congress enacted amending legislation that allowed for ANCSA corporate mergers between regional and village corporations, and NANA filed its intent to merge with the community corporations with the Securities and Exchange Commission in 1975 (NANA

Regional Corporation 1975). In a vote of NANA stockholders, in March 1976, nine of the ten community corporations endorsed the proposed merger through a vote by each village board of directors. A vote by all NANA shareholders within those nine villages confirmed the merger in

1976 (NANA Regional Corporation 1976b). The merger realized the goal of NANA’s leadership for “increased unity among our stockholders” (NANA Regional Corporation 1976a; p. 3).

Nonetheless, local protections were instituted within the Congressional amendments.

Specifically, the legislation required that “in the event of merger, the right to control exploration,

-194- development and removal or minerals from within the boundaries of the village shall be conveyed to a separate entity composed of the Native residents of the village which chose to merge with the regional group” (NANA Regional Corporation 1976b; p. 2). The provision aims to protect villages from regional corporations running roughshod on development, and again aimed to decrease a site of potential conflict. Whereas surface lands are sites of traditional activities and subsistence economies, subsurface lands only promise revenue generation through resource exploitation. To meet this requirement of the amended legislation, NANA planned to create five land committees to assume the responsibility of managing the surface and subsurface estates around the villages. The five planned committees included: (1) Buckland and Deering; (2)

Kivalina and Noatak; (3) Ambler, Kobuk, and Shungnak, (4) Kiana, Noorvik, and Selawik; and

(5) Kotzebue. However, because the Kotzebue community corporation had voted against the merger, the resultant land committee would be limited to one individual (NANA Regional

Corporation 1976b).

The second site of tension addressed by NANA was a generational divide. As some of the

ANCSA provisions came under increased scrutiny by the late 1970s, two issues were of particular concern for Alaska Native leaders. First was the 20-year stock alienation clause, which would allow native shareholders under ANCSA to sell their stock to any other corporation or

American beginning in 1991. Second was the fact that Alaska Native descendants, namely all children born after December 17, 1971, were not allowed to enroll as shareholders in ANCSA corporations. Concern over these two provisions of ANCSA dominated the committee hearings held by Thomas Berger in the Alaska Native Claims Settlement Review process that began in

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1983,97 and concerns about what this would mean for the Inupiat identity in the NANA region were front and center in NANA communications to shareholders. At the 1978 annual meeting of

NANA, the shareholders present directed the corporate leadership to lobby for new legislation that would prevent NANA from being taken over by non-Native shareholders, or see the corporation sold to non-Native corporations.98 In the interim, the shareholders approved changes to the corporate by-laws that would allow NANA the right of first refusal from shareholders looking to sell their stocks, ensuring that the regional corporation would have the first rights to stocks. Shareholders also explored the idea of restricting the voting rights of stocks sold to non-

Natives (NANA Regional Corporation 1978a).

The potential for stock-alienation, and the concern this raised for NANA leadership was clear in the 1983 letter to shareholders in the NANA Annual Report. The letter highlighted the unique culture and identity of Inupiat, and concerns about what the 1991 stock sell-off could mean for the region and for Inupiat culture:

Because we are Inupiat, we live with a special value system different than that of other Americans. We cannot sell our land and move elsewhere because we chose to live and die in our region. We cannot deplete our natural resources because our great, great grandchildren must also live on our land after we are gone. However, the Native Claims Settlement Act has given us the opportunity to be like other Americans after 1991. But we cannot be Inupiat if we allow our stock to be sold. The only way we can be American and Inupiat too, is to retain ownership of our land. Robert Newlin (Chairman) and John W. Schaeffer (President), emphasis added NANA Regional Corporation 1983a; p. 2

In 1988, after years of lobbying by the Alaska Federation of Natives and in direct response to the results published by Thomas Berger as part of the Alaska Native Claims Settlement Review,

97 The full report, Village Journey: The Report of the Alaska Native Review Commission, was published in 1985. 98 On May 1, 1978, Senators Mike Gravel and Ted Stevens introduced a series of amendments to ANCSA, which included a provision to remove the clause on 1992 stock alienation (NANA Regional Corporation 1978a). The amendments were passed into law in 1980.

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Congress amended ANCSA to eliminate the provision on stock sales to non-Native Alaskans.

The amendments also allowed corporations to make decisions regarding the potential shareholders born after 1971. Prior to the amendments, descendants of the 1971 shareholders

(and those alive in 1971 but not yet 18 years of age) were excluded from shareholder status, except through inheritance of gifting of shares. In 1990, under the amendments to ANCSA, corporations could vote to increase their shareholder rolls (in effect diluting the stock) by extending shares to the ‘afterborn’ population. NANA took a clear position on this issue in its

1990 annual report to shareholders, urging shareholders to “make your vote count to include these young Natives as shareholders” (NANA Regional Corporation 1990; p. 8). The decision to include direct descendants in the shareholder population would help to ensure that the institution remained robustly Inupiat. In 1990, the shareholder membership voted to extend NANA shareholder status to those born after 1971.

Summary

While the ANCSA legislation disaggregated institutional creation from Indigenous identity—in some cases splitting Indigenous nations, while in other cases combining distinct nations—the political leaders in the NANA region have used alternative approaches to build identity back into their institutions of governance, develop more coordinated mechanisms of regional governance, and close off some of the potential sites of contestation. Their ability to take these actions has been contingent upon the high within-group homogeneity of the region, which is primarily populated by the Inupiat peoples of Alaska. The building-in of linkages between institution and identity is self-reinforcing, making it easier for the leadership to make collectivist arguments in favour of merging the community corporations with the regional entity,

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5.6.2 Institutional Identity in the Northwest Territories: The Inuvialuit Region

With the implementation of finalized agreements, the Northwest Territories has progressively moved toward a governance system that ties institutional creation closely to

Indigenous national identities. The flexibility of the federal policy, together with the growing realization that small regional claims enabled the completion of negotiated settlements, subsequently pushed institutional creation to align with deeper conceptions of Indigenous nationhood. The flexibility of the policy has also meant that there is considerable variability with respect to institutional outcomes. Since the federal government’s integration of self-government negotiations into the Official Policy of Negotiation in 1995, it has adopted an increasingly flexible view of the means through which self-government can be implemented within the institutional framework, responding to both Indigenous political goals, as well as to specific contextual or institutional factors that may limit the options on the table. The Sahtu Dene and

Métis agreement, finalized in 1993, developed a governance regime that was highly coordinated with Indigenous national identity, but which is becoming increasingly fragmented over time.

Unlike the Tlicho, which negotiated the creation of a regional Indigenous government, the Sahtu has a regional land claim (and regional land claim institution, the Sahtu Secretariat), but also seven distinct community land corporations (four Dene, and three Métis). Rather than pursue a regional self-government model, each of the five Sahtu communities will negotiate separate community self-government agreements with the federal and territorial governments. To date, only the community of Deline has finalized a community self-government agreement, implementing a local public Indigenous government that balances the representation of the

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Deline First Nation, other Indigenous residents, and the community at large. The government provides services to all residents in the community and allows for political representation on the local council and in elections, regardless of Indigenous status (though the council does reserve spots for the members of the Deline First Nation).

By comparison, the Inuvialuit Settlement Region—which was the first region to finalize a land claim—has remained highly coordinated in terms of both institutional identity and institutional integration. The region itself is more homogenous than the Sahtu region, though some of the communities within the ISR are highly mixed. In particular, Inuvik and Aklavik are mixed communities that combine non-Indigenous, Gwich’in, and Inuvialuit peoples.

The signing of Inuvialuit Final Agreement in June of 1984 brought about a major shift in the governance of the Western Arctic and began the move towards the governance of the region as defined by Indigenous national identities. Through the finalized agreement, the people of the

Inuvialuit settlement were defined and bound to new institutions of governance. Pursuant to the final agreement, an Inuvialuit beneficiary would be any eligible Inuvialuit individual, eighteen

(18) years of age and “is considered to be of Inuvialuit ancestry or is considered by reason of

Inuvialuit custom or tradition to be Inuvialuit and is accepted in either case as a member of an

Inuvialuit Community Corporation” (IFA 1988; p. 13). Alternatively, an individual would be recognized as Inuvialuit if he or she could provide evidence of being one-quarter or more

Inuvialuit blood and “was born in the Inuvialuit Settlement Region, or has been a resident of the

Inuvialuit Settlement Region or Inuvik for a total of at least ten years, or if under ten years of age, is ordinarily resident in the Inuvialuit Settlement Region,” (IFA 1988; p. 13) or is the adopted child of an Inuvialuit beneficiary. Importantly, the Inuvialuit Final Agreement (and subsequent land claims agreements) clearly stated that “Native persons may be enrolled in only

-199- one Canadian Land Claims Settlement for which they qualify. Persons who qualify to be enrolled in more than one settlement may choose the one in which they shall be enrolled” (IFA

1988; p. 14). While it is possible for an individual who is eligible for more than one land claims agreement to subsequently shift his or her identity (i.e. from Inuvialuit beneficiary to Gwich’in beneficiary), there are barriers to doing so. The IFA stipulates that the decision to shift identities must be made within ten years of enrollment, and that an individual opting to do so subsequently loses his or her entitlement under the Inuvialuit Settlement.

Institutional Consolidation and Fragmentation

The governing authority over the western Arctic region shifted dramatically with the finalization of the IFA. The Inuvialuit Settlement Region is an area spanning 906,430 square kilometers in the Northwest Territories and part of the Yukon Territory. The Inuvialuit, as defined by the IFA, gained collective fee simple title (land ownership) over 91,000 square kilometers of surface land rights, including 13,000 square kilometers of subsurface rights

(including any minerals, or subsurface oil and gas) within the newly created settlement region.

As part of the agreement, the IFA established new Inuvialuit institutions to manage the economic and environmental interests of the Inuvialuit people. Land title was transferred to the newly created Inuvialuit Regional Corporation (IRC), which assumed the economic mandate.

Meanwhile, the Inuvialuit Game Council (IGC) was established to oversee wildlife management and conservation within the region.

The mandate of the IGC is to “represent the collective Inuvialuit interest in wildlife” (IFA

1988; p. 62), overseeing matters related to wildlife management, renewable resources, harvesting rights, and conservation. The regional organization coordinates community-level Hunters and

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Trappers Committees (HTCs), which are selected through an open vote of Inuvialuit beneficiaries within each community. Each HTC sends two representatives to sit on the regional council. The IGC also fulfills an important role with respect to the public governance institutions that were created through the IFA. Within the region, conservation and resource management is directed by three co-management organizations and two regulatory environmental boards, each of which has Inuvialuit representation as guaranteed throughout the IFA. These institutions include co-management organizations—the Wildlife Management Advisory Council (NWT), the

Wildlife Management Advisory Council (North Slope), and the Fisheries Joint Management

Council—and two environmental regulatory boards, the Environmental Impact Screening

Committee (EISC) and the Environmental Impact Review Board (EIRB).

The mandate of the IRC within the region is to “represent the collective Inuvialuit interests in dealings with governments and the world at large. [The] IRC’s goal is to continually improve the economic, social and cultural well-being of the Inuvialuit through implementation of the IFA and by all other available means” (IRC Website 2017). Like the NANA Regional

Corporation, the IRC made a conscious decision to segregate its own economic mandates from its social role within the region. The Inuvialuit Development Corporation (created in 1977 following the signing of the Agreement-in-Principle) engages directly in profit generation and is organized as a diversified investment, venture capital and management holding company, wholly owned by the IRC. With the economic arm managed primarily through the IDC, and in the absence of an Inuvialuit or regional public government, the Inuvialuit Regional Corporation progressively expanded its governance mandate within the region.

Despite the separation of economic management under the Inuvialuit Regional

Corporation, and environmental management under the Inuvialuit Game Council, there are few

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(if any) documented conflicts between the two organizations (Wilson and Alcantara 2012).

Although the IFA did not define the relationship between the two organizations, it appears that over the past thirty-five years (or so), the two institutions have settled into their respective roles.

The Inuvialuit Regional Corporation, in addition to its economic mandate, has established itself as the political voice of the Inuvialuit people. The IRC employs the self-government negotiators responsible for advancing Inuvialuit self-government, and the institution has taken an increasingly activist role in governing. It has expanded its role in income redistribution within the region, through the establishment of a pension-like program for Inuvialuit elders. It has also become involved in education through the creation of a scholarship program for Inuvialuit students, the management of the Indigenous Head Start program for Inuvialuit beneficiaries, and collaborations with the Beaufort District School Board regarding Inuvialuit language and history in the schools.

Institutional Fragmentation – Failed Attempts at Governance Innovation

The Western Arctic remains, for the time being, highly consolidated at an institutional level, despite attempts to move to more fragmented models of government. As early land claimants, both the Inuvialuit (1984) and Gwich’in (1993) were unable to secure self- government in their initial agreements. As such, as the constitutional and policy framework advanced within Canada, both groups were interested in securing greater autonomy through the development of regional governmental bodies. The Inuvialuit had long-articulated their political goals for self-governance, and their original land claim proposal in 1977 included language to negotiate community self-government (GNWT 1991).

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As they advanced their position on self-government, the Inuvialuit began to propose a model very similar to the borough model that had emerged in parallel to the ANCSA regional corporations in northern Alaska. The Inuvialuit preferred the development of a regional public government to advance their aspirations of self-government. In addition to better aligning with federal preferences, the public government model also had the benefit of responding to the specific demographic dynamics of the Western Arctic region, namely the presence of ‘mixed’ communities—Aklavik and Inuvik—which are home to a substantial number of Gwich’in, settler, and other Indigenous peoples (including Métis). In an attempt to better reflect the regional demographics, the Inuvialuit and Gwich’in opted to submit a joint proposal for self- government in 1993, opting for the creation of a public Western Arctic Regional Municipality with seats reserved for Inuvialuit and Gwich’in representatives (Alcantara and Davidson 2015).

Like the borough governments of northern Alaska, the Western Arctic Regional

Municipality would have introduced more institutional fragmentation to the region. Like the borough governments, the regional municipal government would have had broad jurisdictional authority, including the power to tax development or develop resource-revenue sharing agreements (i.e. agreements on payment in lieu of taxes) with resource development firms. The public government would have also expanded Inuvialuit and Gwich’in authority into the public- sector realm of government services, including education, social service delivery, and justice.

However, unlike the two northern boroughs in Alaska which were utilized by Inupiat leaders to reinforce national identities, by bringing together two Indigenous nations (the Gwich’in and

Inuvialuit) together under a joint governance framework, the Western Arctic Regional

Municipality would have disaggregated Indigenous national identity and from the regional governing body.

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Despite years of negotiations, and a signed agreement-in-principle between the Gwich’in,

Inuvialuit, GNWT, and Canadian federal government, the self-government negotiations fell apart. Although the combined governance model promised a future of stronger relations between the two Indigenous nations, conflict between the two Indigenous nations—including concerns over an unequal distribution of power within the new government and fundamental differences in the way in which these two Indigenous nations interact with the Canadian state—ultimately undermined the joint negotiations. The Gwich’in Tribal Council withdrew from the negotiation process in 2005 (Alcantara and Davidson 2015).

Summary

With the failure of self-government negotiations in the early 2000s, both the Inuvialuit and Gwich’in nations remained consolidated under the land claims organizations developed in the 1980s and 1990s, respectively. However, while this window for institutional evolution closed, both the Inuvialuit and Gwich’in are today pursuing separate Indigenous self-government through negotiations with territorial and federal officials. The Inuvialuit have signed an agreement-in-principle, and thus, as the governance of the region further advances, the political landscape will have to respond to the increasing fragmentation. The comparative cases of regional governance in northern Alaska (and regions of greater fragmentation elsewhere within the NWT) are thus instructive to understanding how dynamics of contestation emerge.

5.7 Conclusion

The process of federalization in the multinational context creates new institutions of governance with the object of responding to minority national groups. As such, the institutions

-204- created can either work to reinforce existing national identities, or they can undermine national identities to construct new, potentially competing, identities. Canada and the United States adopted opposite institutional creation approaches; the Canadian federal government progressively adopting a national identity reinforcing approach, the United States government, an approach of potentially competing identities. Despite the difference in approach, both processes of federalization and institutionalization ran up against very similar concerns. Federal, state/territorial, and Indigenous political leaders alike raised issues over the institutional move towards national-cultural fractionalization, the creation of institutions that were (or had the potential to become) incongruent with the dominant federal institutional paradigm, and the potential for the combination of these two factors to subsequently increase political tensions throughout the northern regions. In raising these issues, the architects of the new institutions of governance were actively concerned about the long-term political implications of early design decisions.

Political institutions, regardless of the earliest intent behind their implementation, do not exist in a vacuum. The institutions of modern land claim agreements are the result of political compromise, their creation premised on the acquiescence of the federal government to

Indigenous demands. In the period since implementation, Indigenous nations have worked to transform, or reform, their institutions to better address their political goals. In Alaska, where institutional creation sought to undermine Indigenous national identity, some Indigenous nations have set about to re-create those linkages. The NANA region leadership undertook this effort by building the Inupiat identity into the regional corporation, through the creation of cultural programming, an emphasis on Inupiat youth and elders, and through a discursive process of embedding identity into the fabric of the corporation. By comparison, in the Northwest

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Territories where institution and identity are fundamentally linked, Indigenous nations have been willing to engage institutions that combine distinct identities (though the move to do so, in the case of the Inuvialuit and Gwich’in, was ultimately held back due to the stickiness of identity- tied institutions [Alcantara and Davidson 2015]). In both the NWT and Alaska, Indigenous nations have experimented with, or been pushed down a path of greater institutional fragmentation.

Ultimately, both institutional variables—the extent to which they embed national-cultural identity and the extent to which they fragment governance authority—have the potential to (re-) shape politics. Building a clear link between a minority national identity and institutional formation has the potential to reinforce in-group relations (relative to the out-group). Meanwhile, institutional fragmentation, in the form of plural parallel institutions, has the potential to break apart or fragment an in-group by creating several (and at times conflicting) definitions of insiders and outsiders. For Indigenous individuals, operating in a fragmented political system means engaging with several identities simultaneously, which may result in internal conflicts. How these institutional design dynamics operate in practice, however, is unclear. In the next two chapters, I use the framework of contestation laid out in Figure 5.1 (page 179) to explore these dynamics in the Northwest Territories and Alaska, focusing in on four recent resource development projects to identify and illustrate their impacts.

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Chapter 6 – Beaufort Offshore Drilling and the Mackenzie Gas Project – Exploring the Political Dynamics of Resource Development in the NWT

6.1 The Changing Political Dynamics of Resource Development in the NWT

Since the introduction of modern treaties in the Northwest Territories (NWT), the prospect of resource development has become much more politically acceptable. Throughout the

NWT, Indigenous political leaders have increasingly come out in favour of resource development, including on projects that at one point were the active sites of protest and contestation that Indigenous political activists used in their fight against the federal government.

This chapter presents two such cases of major resource development to track the emergence of political dissent. The first case, the expected impacts of offshore drilling exploration and development in the Beaufort Sea, is largely limited to the Inuvialuit Settlement Region. The second case, the Mackenzie Gas Project, is more widely salient within the territory. The project, which included some pipeline development, crosses several Indigenous land claim territories, several of which have ongoing land claims negotiations. In both cases of resource development,

Inuvialuit political leadership has reversed its position on development, from being (at one time) broadly anti-development to being broadly pro-development, potentially setting the leadership at odds with the membership. Similarly, in the case of the Mackenzie Gas Project, the move to a pro-development stance has been much more widely taken up by Indigenous leadership throughout the territory.

This chapter presents the results of a media analysis of both resource development projects. In the case of the Beaufort Offshore drilling, the case analysis relies on 74 articles from

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January 2008 to June of 2015.99 In the case of the Mackenzie Gas Project, the case analysis relies on 219 newspaper articles from January 2000 to December 2010. To examine the style and substance of the debate over the two resource development projects, I categorized statements100 in favour of and broadly concerned with resource development along five types of arguments: (1) economic arguments; (2) environmental arguments; (3) governance considerations; (4) process considerations; and (5) social considerations.101 In addition to the form and nature of the public debate, the coding process also noted every mention of a conflict. Conflicts varied in their relative severity. At the low severity end of the spectrum, conflicts include noted or voiced disagreement between political actors or institutions. At the mid-range of severity, conflicts include threats of protest or litigation, while at the high end of the severity spectrum, conflicts include actual actions of protest, litigation, or procedural blocking through institutional mechanisms. One important distinction here is that conflict coding is a count of every mention of conflict rather than a count of the absolute number of conflicts over time. This inflates the overall number of conflicts noted, but better accounts for the duration and importance of a given disagreement over time. Care was taken to attribute arguments to the individual speaking or to a specific institution, based on how actors and institutions were characterized within the text of the media story. This degree of specificity is particularly important in the case of northern resource politics, as leaders frequently shift between roles, or hold several positions simultaneously. As such, coding reflects the institution, role, or identity that an individual has been primarily

99 As a weekly newspaper, the coverage results are lower than data available in Alaska; the primary newspaper, the Anchorage Daily Times, is a daily paper. 100 Statements include quoted arguments made by political actors, as well as summary statements of their views. 101 A single statement can be coded to multiple arguments, depending on the content of a statement. For example, a sentence such as “…the plan includes provisions such as environmental testing and training and employment for beneficiaries” would be coded to [1] environmental concerns have been addressed, and [2] jobs for beneficiaries.

-208- identified with at the time of a media report.102 Analysis of the cases and the discussion of implications regarding the institutional and political context was informed by interviews with northern leaders and government officials, conducted in Tuktoyaktuk, Inuvik, and Yellowknife in March and November of 2015.

Three core themes emerge from the within-case analysis of the Northwest Territories.

First, the cases illuminate the importance of shared rule institutions in a new governance relationship. Within these two cases of resource development, shared-rule institutions that ensure the representation of Indigenous voices or interests in decision-making processes are frequently cast as legitimate venues of deliberation. Secondly, the cases highlight the political implications that emerge from the creation (or maintenance) of ‘uneven’ political or economic ground. Across the two cases, variation between modern treaty agreements—in terms of their relative resource endowments, access to political decision-making processes, and potential economic returns-— acted as an important site for between-group contestation. These differences raised concerns about both economic fairness and procedural fairness, and exacerbated tensions between

Indigenous nations. Thirdly, the two cases offer up some early considerations regarding the potential for institutional fragmentation to act as a site for within-group contestation. In the

Beaufort offshore case, it appears that institutional consolidation on the part of the Inuvialuit may have played a role in dampening within-group dissent. Meanwhile, in the case of the

Mackenzie Gas Project, significant within-group contestation was clear in the Dehcho First

102 For example, in both the cases, the Chair and CEO of the Inuvialuit Regional Corporation was Nellie Cournoyea. However, she also—on several occasions—acted in an official capacity on the Aboriginal Pipeline Group (APG), and spoke to the media on behalf of the APG. Thus, she is coded under APG when she speaks on behalf of that organization, and is coded under the IRC when she is identified as speaking on behalf of the Inuvialuit or in her capacity as IRC Chair.

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Nations, which has a fragmented leadership structure and model of governance but lacks a modern land claim agreement.103

The chapter begins with the case of Beaufort Offshore Drilling, before proceeding to its analysis of the Mackenzie Gas Project. Although the cases are presented out of their chronological order, from a comparative perspective, the sequencing allows us to first explore the dynamics at play internal to the Inuvialuit Settlement Region of the NWT, prior to exploring the place of the Inuvialuit in the territorial political context. The chapter concludes with a discussion of the common features of the two cases, highlighting the patterns of political conflict relative to the expected phenomenon discussed in chapter five. Based on the empirical analysis of expected patterns of conflict, I hypothesize that the two cases in the NWT will be marked by greater between-group conflict dynamics—because of the combination of the strong linkages between national identities and institutions, and the variability between finalized claims—with a lesser emphasis on within-group conflicts, and conflicts between institutionally empowered

Indigenous nations and the state.

6.2 Primary Case: Offshore Drilling in the Beaufort Sea (2008-2015)

The Northwest Territories in 2008 was facing a very different economic outlook than a few years prior. The enthusiasm over resource development that had been gripping the territory since the early 2000s was beginning to wane, as major development projects lagged and industry confidence in the region began to decline. As will be discussed in greater detail later in this chapter, delays in the regulatory process for the Mackenzie Gas Project were undermining the

103 However, like the Sahtu land claim, the Dehcho First Nations may continue to operate under a similarly fragmented governance framework once an agreement is finalized.

-210- prospect of major development in the North. Despite the industry slow-down, northern leaders in the Inuvialuit Settlement Region remained optimistic. Although natural gas prices had begun to fall, and the economic footing of the Mackenzie Gas Project was on shaky ground, oil prices remained high, and industry interest in exploring offshore parcels in the Beaufort Sea began to gain steam. In 2005, the Paktoa C-60 became the first offshore well drilled in the Beaufort in over 15 years. The project brought significant economic spin-offs for the Inuvialuit region

(Curran 2006), as industry partnered with several companies owned wholly or in part by the

Inuvialuit Regional Corporation, including Canadian North, Aklak Air, Aklak Canadian

Helicopters, and Akita Equatak drilling. Meanwhile, several Inuvialuit-owned businesses—those owned by Inuvialuit beneficiaries—including Arctic Oil & Gas Services and Inuvialuit Oilfield

Services, Ltd., also received contracts with the project.

Beaufort exploration began to heat up in 2007, as Imperial Oil (partnering with

ExxonMobil) bid $585 million for exploration rights for a region of the Beaufort Sea 120 kilometers north of the Mackenzie Delta (Loreen 2007). In June of 2008, another major period of bids, resulted in British Petroleum (BP) Exploration bid $1.26 billion for five parcels in the

Beaufort Sea (Thomas 2008b).

Environmental groups met the news with dismay that the federal government had opened bidding on offshore oil parcels; the World Wildlife Fund (WWF) had lobbied the federal government hard to postpone the sale of exploration rights for offshore oil and gas. Northern indigenous leaders, on the other hand, took a very different position. In response to the WWF’s call for postponement, Inuvialuit Regional Corporation (IRC) Chair and CEO Nellie Cournoyea released a statement condemning the intrusion of southern environmentalists on the economic future and opportunities for northern Inuvialuit:

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The Inuvialuit are sick and tired of having their future economic well-being blindsided by southern-based environmental organizations that poke their self- righteous noses into someone else’s backyard without having the decency to consult with the people that live there.

Nellie Cournoyea (as cited in Thomas 2008a)

Other northern leaders echoed Cournoyea’s sentiments. They included the Premier of the NWT

Floyd Roland (himself Inuvialuit), and the Mayor of Tuktoyaktuk, the Inuvialuit community closest to offshore development (Thomas 2008a). With the Mackenzie Gas Project facing serious delays, offshore oil offered the potential for significant development dollars to flow into the region, boosting the territorial economy and bringing jobs and training for Inuvialuit beneficiaries. In this early stage of the debate, one of the biggest points of trepidation appeared to be around the nature of the industry itself. The Inuvialuit Settlement Region had previously benefitted from offshore exploration and development in the 1970s and 1980s, but booms and busts mar the experiences of Indigenous nations with the oil and gas industry. Since those early days of exploration, the Inuvialuit and residents of the Beaufort Delta region had been experiencing (and recovering from) a bust period that had lasted several decades.

In February of 2010, with interest in the offshore parcels increasing and with the federal government considering the release of more parcels, the National Energy Board announced that it would begin reviewing its policies and regulations for offshore drilling. In particular, it would review the requirement that offshore exploration in the Beaufort Offshore be equipped with

‘same season relief well capacity’ for oil and gas operations. Under the relief well policy, offshore exploration requires secondary wells to be drilled in order to help control blowouts and mitigate (and reduce) the release of hydrocarbons into the environment (Gagnon 2010). Industry proponents interested in drilling offshore were keen to do away with this policy, as they viewed it as unnecessarily cumbersome and costly in the Arctic environment (May 2010). While this

-212- regulatory practice was well-established in offshore drilling elsewhere, industry proponents argued that the drilling season in the Arctic was too short to enable both the drilling of a secondary relief well and progress on exploration (May 2010). The NEB planned to begin hearings in June of that year, focused specifically on rationales for the requested exemption, and the reasonableness (and safety) of industry alternatives to the same season relief well.

The concerns voiced around offshore oil and gas development shifted dramatically in the spring of 2010. In April of that year, the Deepwater Horizon—an offshore rig operated by BP

Energy—exploded in the Gulf of Mexico. The disaster killed eleven people and 4.2 million barrels of oil spilled into the Gulf over the 87-day period it took to fully contain the spill

(Pilkington 2010). In its attempts to manage and mitigate the spill, BP Energy officials also released 1.8 million gallons of Corexit, the chemical dispersant agent used to break up the oil.

In Canada, industry groups, the government of the Northwest Territories, and Inuvialuit organizations, including the Inuvialuit Game Council and the Inuvialuit Regional Corporation, called on the National Energy Board to postpone the hearings until the investigation into the

Deepwater Horizon spill had been completes. In a reversal from 2008, IRC Chair Nellie

Cournoyea urged Ottawa to impose a moratorium on offshore exploration, including further lease sales to industry, pending the NEB review. By the fall of 2010, the NEB responded to

Inuvialuit and industry recommendations, halting offshore exploration while industry reviewed what had gone wrong in the Gulf of Mexico and the policy review on same season relief wells was undertaken.

Despite the concerns raised by Inuvialuit beneficiaries in the wake of the Deepwater disaster, most of the Inuvialuit leadership (including the IRC Chair) remained broadly supportive of offshore development in the long term. In what appears to be an effort to address concerns

-213- regarding the economic implications for the region, Ms. Cournoyea downplayed the importance of offshore development to the regional Inuvialuit economy, noting “that local residents have little stake in the offshore activity, since industry tends not to use local suppliers or workers”

(McCarthy 2010). Nonetheless, the IRC remained active in onshore and offshore oil development through its companies and joint ventures, and the Mayor of Tuktoyaktuk, Merven

Gruben, cautioned against taking a hard line against offshore development. He noted that while concern over exploration efforts was natural in light of the recent oil spill in the Gulf of Mexico, it was unwise to worry too much as offshore drilling still had plenty of hurdles to overcome, and that he maintained confidence that regulatory review process would be able to address them

(May 2010).

6.2.1 Media Analysis – The Changing Nature of the Debate

The media analysis covers six-and-a-half years of public debate, from January 2008 to

June 2015. Over the course of the public discussion, 332 distinct arguments for and against offshore drilling were coded in the 74 media articles. Although the debate itself was generally balanced in the media, with 182 arguments coded in favour of development and 146 coded against development, the support for the project shifted somewhat over time (see Annex II,

Figure II-A1).

The dominant narrative about offshore drilling (best exemplified by the quotation from

Nellie Cournoyea on page 209) shifted dramatically following the 2010 spill in the Gulf of

Mexico, an external event that highlighted many of the risks associated with offshore drilling.

The prolonged inability of BP to stem the tide of oil spilling into the Gulf was of considerable concern to Inuvialuit beneficiaries, many of whom rely on coastal subsistence resources

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(including whaling) to sustain their lives and livelihoods. At public meetings, Inuvialuit beneficiaries increasingly spoke out against resource development. In one of the National Energy

Board (NEB) hearings held for its offshore drilling policy review, several young Inuvialuit beneficiaries stood to share their concerns. “The result of an oil spill will have devastating effects…How often will exploration happen there? Who will pay for the clean up? Who will monitor the situation?” (Amie Charlie as cited in Stokell 2011). Ulukhaktok elder Robert

Kuptana raised similar concerns at a meeting in 2014, noting that “if there should be an oil spill, we [the Inuvialuit] would have a lot to lose” (Busch 2014). A director for the Paulatuk Hunter and Trappers Committee echoed these concerns at the same meeting, noting that “we [the

Inuvialuit] live off the ocean. We live off the land, the beluga, the seal, the ducks…if [an oil spill] ever happened up here, our whole life would be non-existent” (Lawrence Ruben as cited in

Busch 2014).

Not only were concerns raised about the direct environmental risks presented by the possibility of oil spills from drilling, additional concerns were raised about the fact that the Arctic offshore environment is a much more challenging environment for industry to operate within. The window for drilling over the summer months is quite small. As well, operational risks associated with ice floes and encroaching sea-ice coverage in the winter, which could cut off access to polluted waters, undermines the ability of proponents to effectively address oil spills in the northern sea. These environmental concerns were clearly top of mind, and the coverage for and against development was clearly split along different parties participating in the debate:

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Figure 6.1: Proportion of Arguments For/Against Drilling, by Actor [% total debate]

Indigenous Citizens [8.7] Environmental Organization [11.5] Citizens-Northerners [7.8] Media [8.4] Indigenous Institutions-Leaders [22.0] Regulatory Agencies [10.2] Local Mayors [12.6] Government (Fed-Terr) [7.5] Industry [11.1]

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Arguments against development Arguments in favour of development

As can be seen by the breakdown of arguments above (in Figure 6.1), positive arguments are overwhelmingly clustered in indigenous leadership (including local mayors, such as the Mayor of Tuktoyaktuk), federal and territorial government officials, and regulatory agencies (together accounting for over 50% of arguments coded in the debate). By comparison, ‘citizens’—both indigenous and non-indigenous, including in the form of advocacy or environmental organizations—presented overwhelmingly negative perspectives on the proposed resource development. Nearly 80% of the arguments made by Indigenous citizens were categorized as being against offshore exploration and development. Of the arguments coded to Inuvialuit individuals and institutions specifically, 74% made by Inuvialuit beneficiaries were negative, as compared to just over 40% of the arguments made by Inuvialuit leadership (data not shown).

As illustrated later in the case of the Mackenzie Gas Project, both the potential economic benefits and the potential environmental implications of development in the Beaufort Offshore were not (and would not be) universally felt. The economic benefits and the environmental risks would be experienced differentially at the local level. As the economic and administrative center of the Inuvialuit Settlement Region, the town of Inuvik arguably has the most to gain from development; as an inland community, it also takes on little of the risk of offshore blowout.

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Meanwhile, while Tuktoyaktuk along the north coast of mainland NWT also has the potential to benefit from development—and previously acted as a local hub for industry for offshore activity—the community, along with other subsistence-dependent coastal communities such as

Sachs Harbor and Holman (Ulukhaktok), would be disproportionately affected in the event of a blowout. This uneven distribution of costs and benefits opens yet another potential site of conflict in the case of Beaufort Offshore drilling.

6.2.2 Dynamics of Dissent in the Beaufort Offshore

Given the breakdown of arguments by Indigenous ‘citizens’ as compared to Indigenous

‘leadership and institutions’ for and against development, the case appears ripe for considerable within-group conflict (particularly between Inuvialuit beneficiaries and Inuvialuit leadership, who constitute the majority of these two actor types). Yet despite this clear mismatch in priorities and argumentation, actual within-group conflict for the Inuvialuit was limited, and no conflict occurred between Inuvialuit citizens and the institutions created to represent them.

Figure 6.2: Sites of Dissent – Minority Nations (Within and Between Nations)

Number of Coded Conflicts 0 1 2 3 4 5 6

Inuvialuit Gwich'in Dene Nation

Within-Group Gwich'in-Dene Nation .

Inuvialuit-Dene Nation

-Group Inuvialuit-Gwich'in Between

Citizen Citizen-Institutional Institutional

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Instead, a total of nine conflicts were coded between Indigenous national groups, and in particular, between Inuvialuit and Gwich’in institutions and their counterparts from the Dene

Nation. Although the Gwich’in were not central to the debate over offshore drilling—as they do not own any part of the shoreline based on their regional land claim—Gwich’in leadership was nonetheless quite interested in the prospect of development. Due to its proximity to the development, Gwich’in leadership viewed offshore drilling as having the potential for significant economic spin-offs, including jobs for Gwich’in beneficiaries and contracts for Gwich’in businesses. Thus, when the Dene National Chief, Bill Erasmus, began speaking out against the prospect, Gwich’in leadership joined its voice with Inuvialuit leadership to reject the intrusion of the Dene Nation into the project (Giilck 2013b). Moreover, as members of the Dene Nation, the

Gwich’in leadership took issue with not being properly consulted in advance of the resolution made by the Dene Nation against offshore drilling (which it signed jointly with the Russian

Association of Indigenous Peoples of the North, at a conference organized by Greenpeace).

The lack of within-group dissent, as it applies to the Inuvialuit, appears related to the public confidence attributed to Inuvialuit institutions. Inuvialuit beneficiaries who spoke out against the project focused overwhelmingly on concerns over the environmental implications of development. Nearly 50% of all argumentation by Inuvialuit beneficiaries related to environmental concerns (data not shown). However, rather than downplay the risks of development or attempt to undermine the validity of these concerns, Inuvialuit leadership consistently argued in favour of development by highlighting the role that Inuvialuit would play in approving, regulating, and overseeing development in the Beaufort Sea. Forty-two per cent of positive argumentation (or approximately 25% of all argumentation) made by Inuvialuit leadership was coded to one of two nodes: (1) regulatory processes ensure Inuvialuit

-218- involvement; and (2) Inuvialuit institutions protect land and regulate development. That number increases to nearly 58% of positive argumentation when assurances about the adequacy of the existing environmental management regime are included (data not shown; see Annex II, pages

328-330 for a breakdown of codes).

This result reflects the unique nature of regulatory oversight in the Inuvialuit region.

While the National Energy Board (a federal institution) maintains its oversight role in offshore development,104 for offshore drilling projects to advance in the Beaufort Sea, the Environmental

Impact Screening Committee (EISC) and the Environmental Impact Review Board (EIRB) make recommendations to the federal government as to the appropriateness of a project. Both institutions have Inuvialuit representation on the board, appointed by the Inuvialuit Game

Council, as outlined in the Inuvialuit Final Agreement (Hudson 2012).105 The IRC Chair, Nellie

Cournoyea, consistently highlighted Inuvialuit involvement in resource development oversight and management. In responding to Dene concerns over offshore drilling, Cournoyea rejected the idea that development was occurring too rapidly and without adequate consultation with affected

Indigenous peoples. She countered that the Inuvialuit “have well respected institutions such as the Inuvialuit Game Council, which is well-known throughout the world for their approach to the co-management of resources. They do their own research to determine what protections are appropriate, and I have full confidence that they will do the right thing” (Giilck 2013b).

Inuvialuit beneficiaries made similar arguments; Robert Kuptana—cited earlier voicing his

104 In order to drill offshore, an initial project screen occurs through two institutions created under the Inuvialuit Final Agreement: the Environmental Impact Screening Committee (EISC), which then refers projects with potential environmental impacts to the Environmental Impact Review Board (EIRB) to complete the environmental assessment. Once the environmental assessment is complete (or in parallel to the completion of the EA), proponents are then required to apply to the NEB for an operating license, an operations authorization, and a well approval (Letts 2013). 105 Pursuant to the Inuvialuit Final Agreement, the Inuvialuit appoint three members to both the EISC and the EIRB.

-219- concerns with development—noted that “there is a need [for the Inuvialuit] to have a very big control in the development. I think that can be done through the Inuvialuit Region and the game council” (Busch 2014).

Other avenues for Inuvialuit participation in the regulatory and management process were also created in the case of offshore drilling. The first was through the development of a five-year environmental study of the Beaufort Sea, through the creation of the Beaufort Regional

Environmental Assessment (BREA) (Quenneville 2010). Launched in 2010, BREA was a multi- stakeholder initiative aimed at sponsoring environmental and socio-economic research to inform the management and regulation of oil and gas development in the Beaufort Sea. The Government of Canada committed $21.8 million over four years to support the initiative. Inuvialuit institutions and leadership were engaged in many parts of the BREA architecture, with representation on the Research Advisory Committee (which included Inuvialuit beneficiaries and traditional knowledge holders), the Steering Committee (including the Inuvialuit Game Council, and the Inuvialuit Regional Corporation), and on the National Executive Committee that reported to the Deputy Minister of Indigenous Affairs and Northern Development Canada (Inuvialuit

Joint Secretariat 2017). INAC official Michel Chenier noted that the creation of BREA was yet another “forum for [the Inuvialuit] to bring forward what they consider to be areas or issues that are priorities for them” (Quenneville 2010). In 2012, the Minister of Indigenous Affairs and

Northern Development announced that seventeen research projects had been initiated in response to community priorities in the Inuvialuit region, in consultation with government, academia, and industry stakeholders (Government of Canada 2012).

The regulatory process itself also provided several opportunities for community engagement and feedback on the prospect of drilling. In 2011, the NEB began its review of

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Arctic drilling, and the policy framework for development. Information sessions were held in all six Inuvialuit communities (Heiberg-Harrison 2011), while the Inuvialuit Game Council worked to fill in any gaps, consulting closely with Inuvialuit residents and relaying concerns to the NEB

(May 2011). NEB consultations continued through 2012 and 2013, as board representatives met with Inuvialuit communities on the development of the Arctic offshore policy framework. The consultation process highlighted community concerns over issues such as spill containment, the environmental and cultural risks associated with a blowout, and the potential (and long-term) environmental impacts for such an ecologically sensitive region such as the Arctic (Giilck

2013a). Meanwhile, parallel processes also began with the Environmental Impact Review Board; throughout the springs of 2014 and of 2015, the EIRB travelled to every community in the

Inuvialuit Settlement Region to discuss offshore drilling, and provide further opportunities for

Inuvialuit input into the development of offshore oil and gas (Strong 2014; Giilck 2015).

Despite the potential for considerable environmental harm from Arctic offshore drilling, the lack of significant contestation within the Inuvialuit Settlement Region—between concerns of Inuvialuit beneficiaries and pro-development Inuvialuit leadership—suggests that the coordinated nature of Inuvialuit governance has helped to consolidate venues for participation and successfully integrate local voices and concerns. Inuvialuit leadership, while clearly coming out in favour of offshore exploration and development, integrated many citizen concerns into its own public comments. In particular, it highlighted the importance of ‘getting development right’ with respect to building local capacity for oil spill response, creating strong regulatory standards to reduce the likelihood of adverse environmental impacts, and developing robust contingency plans in the case of spills.

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In addition to reducing the potential for within-group dissent, the clarity of the regulatory framework and the strength of the shared-rule institutions—including a high degree of institutional and process legitimacy—also seem to have dampened sites of dissent between the

Inuvialuit and the institutions of the majority nation. The commitment to regulatory coordination—between Inuvialuit institutions, the Canadian federal government (including the

National Energy Board), and the Government of the Northwest Territories—and the incorporation of Inuvialuit leadership and Inuvialuit institutions into the regulatory framework helped to ensure that Inuvialuit concerns were elevated, enhancing the legitimacy of the process and reducing friction between minority nation and the state.

Figure 6.3: Sites of Dissent – Inuvialuit vs. the Majority Nation [number of coded conflicts]

0 2 4 6 8 10

Federal Government

Regulatory Agencies Citizen- C-IInstitutional GNWT I-IInstitutional

Multinational Corporations

Environmental Advocacy Groups

Instead, most of the conflict dynamics that were observed with the majority-nation developed between Inuvialuit leadership/institutions and environmental advocacy organizations. Compared to Inuvialuit leadership, both Greenpeace and the World Wildlife Foundation took hard stances against the prospect of offshore drilling, conflicting with the Inuvialuit position of cautious support of offshore oil and gas exploration and development, and drawing a public backlash from Inuvialuit leadership.

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The dynamics at play in the case of offshore drilling in the Beaufort Sea provide a view into the ways in which institutional design affects the dynamics of inter- and intra-group conflict in the self-government of national minorities in the Northwest Territories. The next section of the chapter builds on this analysis by exploring the dynamics at play in the case of resource politics that affect the Inuvialuit Settlement Region differently than they do other Indigenous minority nations within the NWT. The case of the Mackenzie Gas Project highlights several of the same trends (low within-group contestation for the Inuvialuit, and the importance of shared-rule institutions) while introducing new sites of conflict on a regional scale.

6.3 Common Case: The Mackenzie Gas Project (2000•2010)

Like the case of Beaufort Offshore Drilling, the political prospect of a Mackenzie Gas

Project has a long history in the Northwest Territories. In the early 1970s, large reserves of onshore natural gas were discovered by industry proponents in the Mackenzie Delta region of the

Northwest Territories,106 in what is today the Inuvialuit Settlement Region near the municipality of Inuvik. The discoveries included the Tajla reserve containing 3 trillion cubic feet of natural gas, the Parson’s Lake reserve containing 1.8 trillion cubic feet of natural gas, and the Niglintgat reserve containing 1 trillion cubic feet of natural gas (Ashbury 2000a). The reserves spurred considerable industry interest in the development of the gas resources, and in the construction of a pipeline to carry natural gas from the new discoveries down to southern markets. The subsequent proposal to construct the pipeline route southward kicked off a period of significant

Indigenous protest and mobilization against the pipeline development within the territory. In

March of 1975, Justice Thomas Berger launched a 21-month inquiry into the proposed

106 The region is found in the northwest quadrant of the Northwest Territories, bordering the Yukon Territory.

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Mackenzie Valley Pipeline project. Over the course of the inquiry, Justice Berger travelled throughout the Mackenzie Delta to hear testimony from people in 35 communities in the

Mackenzie Delta and beyond. At the end of the inquiry, Justice Berger famously recommended a ten-year moratorium on development—until the federal government had settled northern land claims. By the time the Berger Commission wrapped up, market conditions had changed and the immediate plans for resource development were abandoned or postponed indefinitely.

By the late 1990s, several of the land claims in the NWT—including the Inuvialuit,

Gwich’in, and Sahtu claims—had been settled, and increased demand for natural gas renewed industry interest in the Mackenzie Delta reserves. The relatively lower costs of pipeline and drilling technology and the higher price of gas, however, were not the only factors that made revisiting the pipeline proposal attractive. Indigenous leaders who had fought against the pipeline proposal in the 1970s were ready to begin considering that kind of development on their lands

(Ashbury 2000a). The Inuvialuit Regional Corporation was particularly interested in the pipeline.

Since the settlement of the Inuvialuit Final Agreement in 1984, the business arm of the Inuvialuit

Regional Corporation (the Inuvialuit Development Corporation) had grown into a multifaceted corporate entity with a focus on transportation and on oil and gas field services (Halifax 2002b).

By the early 2000s, with assets in the range of $130 million and annual revenues hovering around $180 million, the Inuvialuit Development Corporation set its sights on building itself into a billion-dollar corporation, and capitalizing on the frenzied development interest in the North

(Halifax 2002b).

Over the course of a two-day conference in January of 2000, leadership from the

Inuvialuit Regional Corporation met with other NWT Indigenous leaders to discuss the resurrection of the Mackenzie Valley Pipeline via the Mackenzie Gas Project. Unlike the first

-224- attempt at pipeline development, this project would differ in an important way: Indigenous groups would seek an ownership stake in the pipeline project, one that would have the potential to reap dividends for generations. Early discussions around the prospect of a pipeline were generally positive, focusing on the beneficial impact for northern Indigenous populations with respect to economic development and jobs for northerners. Naturally, concerns were also raised, including the implications for the ability of Indigenous leaders to ensure that the Indigenous vision for pipeline development would remain paramount once industry and government became seriously engaged. Nonetheless, Indigenous leaders from each of the NWT Indigenous nations— including the Inuvialuit, Gwich’in, Tlicho, Dehcho Nation, Treaty 11, and Sahtu Secretariat— committed to moving forward with the pipeline proposal (MacIsaac 2000). With the MOU signed by all the participating Indigenous nations in the NWT, the ‘Aboriginal Pipeline Group’

(APG)107 moved to negotiate the terms of joint ownership with industry groups. In October of

2001, the APG announced that it had reached an agreement with four of North America’s largest oil and gas producers—Imperial Oil, Conoco Philips, Exxon Mobil, and Shell. The agreement assured the APG a one third stake in the $3 billion pipeline project.

Despite the buy-in from Indigenous groups across the NWT, the project soon began to run into trouble. Signs of a rift in the leadership compact were visible almost immediately, beginning with the signing of the MOU in January of 2000. Whereas the other Indigenous nations—including the Inuvialuit, Gwich’in, and Sahtu leadership—were quick to sign onto the agreement, the Dehcho leaders emerged from their closed discussions about the agreement well

“after most of the assembled crowds, leaders, and businesses had left” (Halifax 2000b),

107 At this stage, the APG was composed of 30 Indigenous leaders and an executive team made up of Nellie Cournoyea (Inuvialuit Regional Corporation), Richard Nerysoo (Gwich’in Tribal Council), Doug Cardinal (Hay River Dene Band), Dennis Nelner (Dehcho First Nations), and Gordon Lennie (Sahtu) (Ashbury 2000b).

-225- suggesting a hesitation over the terms. The APG agreement also faced other internal challenges.

Two local Gwich’in organizations, the Aklavik Native Band and the Inuvik Indian Band, pushed back against the APG framework in favour of an alternative pipeline financing model being proposed by a southern proponent, ArctiGas Resources Corporation. Whereas the APG model secured a one third stake for Indigenous proponents, ArctiGas pushed a proposal that promised

“100% Indigenous ownership” of the pipeline (Halifax 2002a). Meanwhile, the Dehcho First

Nations began backing away from the APG framework over concerns that the deal disadvantaged the Dehcho, relative to the other Indigenous nations involved. Although the risks of a breakup were downplayed by the other Indigenous leaders and by industry proponents, the

Dehcho were prepared to walk away from the agreement. As the only Indigenous nation on the pipeline route without a settled modern land claim, the Dehcho First Nations faced a limited set of financial opportunities from development and a lesser role in the regulatory and approvals process, relative to the other Indigenous nations. Moreover, the Dehcho seemed keen to use their approval over the pipeline project as means of leveraging a final agreement on their land claim negotiation, just as the Inuvialuit and Gwich’in had done when the original pipeline project was proposed in the 1970s (Neary 2000; News/North 2001).

Although several issues plagued the life of the project, two took center-stage. The first issue, affecting the timely development of the pipeline project, was the negotiation between

Indigenous nations and industry proponents over access and benefit agreements, and the potential economic and social benefits associated with development. The nature of the joint venture between the Aboriginal Pipeline Group (Sahtu, Gwich’in, and Inuvialuit) and the

Mackenzie Valley Pipeline Producers Group (ExxonMobil, Shell, Imperial, and Conoco Philips) saw economic benefits flowing to the Indigenous proponents after the costs of development had

-226- been recouped. The APG financing model, however, did not address any of the larger spin-offs of development, be they positive or negative. To address these issues—including education and training, economic investments in community development, or programming to mitigate negative aspects of development—industry proponents negotiated parallel agreements directly with the

Indigenous nations, a necessary condition to securing access to the lands. Although talk of the importance of access and benefits agreements began early in the project, actual negotiations between Indigenous nations and industry did not start in earnest until late 2004 (Neary 2004b).

Industry proponents backed away from several of the proposals, including one favoured by

Dehcho communities on a model akin to property taxation for development. Instead, industry proponents favoured settlements that addressed a mix of specific issues, including training and education, scholarships, preferential contracting, and employment targets (Bickford 2008). While early breakthroughs on the access and benefit agreements began to take shape by the end of

2005—with four of the six Sahtu communities tentatively giving their approval to the proposed terms—several of the regions, including the Inuvialuit Settlement Region, did not finalize and ratify the access and benefit agreements until 2008 (Curran 2005; Bickford 2008). By late 2008, only the Gwich’in and the communities of Tulita and Deline in the Sahtu had come on board to ratify their own access and benefit agreements with industry; meanwhile, agreements-in- principle had been reached with Fort Good Hope and Colville Lake, also in the Sahtu region.

The second major issue plaguing the life of the project related directly to the concerns raised by the Dehcho, specifically with respect to the development of a streamlined regulatory framework for the environmental assessment and pipeline approvals. The finalization of modern

-227- treaties in the Northwest Territories set up a patchwork of regulatory organizations.108 In order to reduce the duplication of processes and streamline the regulatory framework, the federal and territorial governments began negotiating a combined territorial process with Indigenous nations, in the form of the Joint Review Panel (JRP) appointed in August of 2004. 109 The JRP panel was composed of two representatives nominated to the board by the Inuvialuit, one representative nominated by each of the Gwich’in and Sahtu, and one representative for the Dehcho nominated by the federal government.110

By April of 2004, significant public concern over the potential environmental impacts of development had seen each of the Mackenzie Valley Environmental Impact Review Board

(MVEIRB), the Inuvialuit Environmental Impact Review Board (EIRB), and the Canadian

Environmental Assessment Agency (CEAA) refer the project to the Joint Review Panel for a higher level of scrutiny (Neary 2004a). Perhaps unsurprisingly given the makeup of the board, the Dehcho First Nations strongly opposed the makeup of the proposed board, arguing that they should be allowed to nominate directly to the board, and that they should have two representatives to reflect the relative amount of the pipeline that would be going through Dehcho territory (approximately 40 percent)111 (Halifax 2000a). However, without a finalized land claim,

108 In the Inuvialuit Settlement Region, project screening occurs through the Environmental Impact Screening Committee (EISC) and Environmental Impact Review Board (EIRB). In the rest of the NWT, modern treaties ensure that Indigenous nations nominate members to the Mackenzie Valley Environmental Impact Review Board (MVEIRB), to the Mackenzie Valley Land and Water Board (MVLWB), as well as to three regional land and water boards. Finally, as a pipeline project, the National Energy Board also has jurisdiction and regulatory oversight at the federal level. 109 The JRP was established under the terms and conditions of the Inuvialuit Final Agreement, the Canadian Environmental Assessment Act, and the Mackenzie Valley Resource Management Act. 110 Although board members were nominated by Indigenous organizations, it is important to note that members of the Joint Review Panel were tasked with acting in the public interest, and not on behalf of the bodies that nominated or appointed them. 111 However, it should be noted that the relative impacts from pipeline construction would be arguably lesser for Dehcho region, as the southern portion of the pipeline was already constructed over the Dehcho contested territory, extending from the existing gas fields in Norman Wells to Zama, Alberta (Halifax 2000a).

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the Dehcho First Nations had no institutional mechanism by which to ensure their representation.

In response to the JRP proposal, the Dehcho sued the federal government, demanding two seats

on the panel be nominated by the Dehcho First Nations.

The full environmental impact statement was submitted to the JRP by proponents in

October of 2004, and at the time, the outcome of the review was expected to be delivered by

mid-2005 (Quenneville 2009). However, delays caused by the Dehcho litigation meant that

public hearings did not begin until over a year later, in February of 2006 (Unrau 2004; Unrau

2006). When the hearings began, the JRP projected that the environmental review would be

complete in 2007, however the panel repeatedly revised its projected completion, citing a variety

of factors including the complexity of the issues facing the project (the JRP received over 5,000

written submissions, and thousands of recommendations). After years of delay, the JRP released

its report—with a set of 176 recommendations for proponents—in December of 2009

(Quenneville 2009); the federal approvals followed a year later in December of 2010 following

the report from the National Energy Board. In many respects, however, the approvals came too

late. The economic downturn that emerged following the United States financial crisis had taken

hold in Canada, which, with escalating costs of constructing the pipeline and low natural gas

prices, made the pipeline project unviable in the short term. In December of 2017, Imperial Oil

announced that the Mackenzie Gas Pipeline Project had been cancelled and the partnership

dissolved (Imperial Oil 2017).

6.3.1 Media Analysis – The Changing Nature of the Debate

The media analysis covers a decade of public debate, from January 2000 to December

2010, with 219 newspaper articles coded. Analysis over that period finds a relatively balanced

-229- public dialogue that raises a range of arguments in support of, and concerns about, the

Mackenzie Gas Project. Through the thematic analysis, 651 references were coded to arguments in favour of development, while 327 references were coded to arguments that raised concerns about development. Figure 6.4 (below) provides an overview of the breakdown of argumentation.

Figure 6.4: Proportion of Debate For/Against the Mackenzie Gas Project [N=978]

100% 90%

80% Forand

- 70% 60% 50%

40% Against 30% 20% 10%

0% ProportionofCoverage 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 Year

Arguments against development Arguments in favour of development

Though there were occasional breakthroughs of negative argumentation, only two years (2002 and 2004) saw negative arguments overtake favourable arguments on pipeline development. The peaks toward negative argumentation generally reflect different periods of the debate. The first negative peak generally relates to push back against the specific nature of the APG framework and concerns by the Dehcho over implications for their land claims negotiation. The second negative peak generally concerns the dual issues of the make-up of the Joint Review Panel, and issues around negotiating the access and benefit agreements. Negative argumentation rose near the end of the case with concerns over regulatory delay, and the subsequent delays by the JRP on the final release of recommendations.

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Indigenous institutions and leaders were the predominant voices in the public debate. Of the coded arguments, 601 (61.5 per cent of all argumentation) were attributed to Indigenous national groups and/or their leadership (see Annex II, Figure II-B1). The argumentation was generally positive, with nearly 64 per cent of arguments attributed to Indigenous groups/leaders coded in favour of pipeline development. However, there are important differences between the different NWT Indigenous nations regarding the project. The Dehcho First Nation (accounting for upwards of 30 per cent of arguments by an Indigenous nation/leader) stands clearly apart from the other NWT nations, with 73.2 per cent taking on a negative frame.

Figure 6.5: Percent Argumentation For/Against Development, by Nation [% total debate]112

Deh Cho First Nations [31.1]

Gwich'in [19.0]

Sahtu Dene & Metis [9.2]

Inuvialuit [25.3]

Aboriginal Pipeline Group [9.8]

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Arguments against development Arguments in favour of development

This variation on project favourability by Indigenous national group reflects the differences felt between minority nations with respect to their formal relationship with the state. The finalization of some land claims (the Inuvialuit, Gwich’in and Sahtu) and not others (the Dehcho) has—for the time being—institutionalized varying levels of autonomy (self-rule) and engagement on shared-rule governance institutions. This institutional disadvantage felt by the Dehcho comes out

112 Note: the chart references N=567 of coded argumentation; it does not include arguments coded to the general category of “Indigenous leader” whereby no specific identity is attributed. As well, arguments coded to the Dene National Assembly and select First Nations under that umbrella (N=16) and Alaska Native groups (N=15) are also excluded, as they represent such a small portion of the debate. The above data represents nearly 95 per cent of all arguments attributed to Indigenous national groups and/or Indigenous leadership.

-231- clearly in the both the thematic media and in the analysis of conflict dynamics.

6.3.2 Dynamics of Dissent in the Mackenzie Valley and Beaufort Delta

Over the ten-year period of media coverage, a total of 635 conflicts were coded. Over 80 per cent of the cases of dissent are coded as occurring between institutional actors (see Appendix

A, Figure A2 for details), while nearly one third (30.4% or 193 conflicts) occurred within and between Indigenous nations and institutions:

Figure 6.6: Sites of Dissent – Minority Nation v. Minority Nation

0 5 10 15 20 25 30 35 40 Inuvialuit Gwich'in Sahtu Deh Cho

Dene Nation* Within-Group

Inuvialuit-Gwich'in Inuvialuit-Deh Cho Inuvialuit-Sahtu Deh Cho-Sahtu Deh Cho-Gwich'in

Gwich'in-Sahtu Between-Group

APG-Inuvialuit APG-Gwich'in APG-Sahtu APG-Deh Cho

Aboriginal APG-Tlicho

Pipeline Group Pipeline APG-Akaitcho

Citizen Citizen-Institutional Institutional

Of the 193 total conflicts, 62 were coded as being ‘within-group’, 72 were coded as occurring between Indigenous national groups, while 59 were coded as occurring between an Indigenous national group and the Aboriginal Pipeline Group created to represent Indigenous interests as part of a joint venture with industry. Of these coded conflicts, those occurring with (and within) the Dehcho First Nation dominate, account for 47% of within-group conflict, 63% of conflicts

-232- with the APG, and 85% of conflict between Indigenous national groups. This dominance of conflict between Indigenous national groups and the Dehcho is unsurprising given the context of the debate over pipeline development. Of the negative arguments coded to the Dehcho First

Nation, the debate focused overwhelmingly on the relative lack of access that the Dehcho had to the potential benefits accruing from development, and to the regulatory processes overseeing development. Of the 127 arguments coded to Dehcho institutions and leaders, over 40% of arguments focused on issues of governance (see Table 6.1 below):

Table 6.1: Dehcho First Nation – Arguments Against the Mackenzie Gas Project [N=127]

Theme Argument # Arguments Total Coded [N = Coded 127] Indigenous groups need to have pipeline ownership 10 Economic Access & Benefits deal is not good enough 5 30 Benefits of development are disproportional 15 Environmental Environmental impacts will be felt from development 4 18 Impacts of development are disproportional 14 Dehcho land claims need to be settled 28 Governance 55 Differences in claims affect makeup of regulatory board 27 Process Lack of consultation on project development 15 22 Representational concerns (conflicts / lacks transparency) 7 Social Exacerbates social issues / Affects culture & subsistence 2 2

As the only Indigenous nation that was directly affected by pipeline development but did not have a finalized land claim, the Dehcho First Nations were put at a significant disadvantage in regulatory processes. Even though the Dehcho First Nations were offered a stake in the

Aboriginal Pipeline Group, which would have given the nation an equity stake in the project, the regional governance organization representing the Dehcho in land claims negotiations with the federal and territorial government declined to sign on as a partner in the agreement. The Dehcho leadership was keen to utilize the Mackenzie Gas Project as leverage for its own land claims negotiation process.

For those Indigenous nations engaged in the Aboriginal Pipeline Group, the refusal of the

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Dehcho to commit to the partnership (and their legal battles with the federal government) created uncertainty over the security of benefits from development, and placed the economic futures of the Inuvialuit, Gwich’in, and Sahtu at risk. Thus, while Indigenous leaders from the settled claims regions were sympathetic to the political goals of the Dehcho in advancing their position vis-à-vis a finalized modern land claim, they also put considerable pressure on the Dehcho to come on board the APG and sign onto development.

Despite their aim to use the pipeline process as a means to finalize negotiations, the

Dehcho leadership was ultimately willing to trade in this leverage in favour of a seat at the table on regulatory processes and by late 2004, the Dehcho had amended their demands. Facing pressure from the other Indigenous groups in the NWT—and with the realization that finalization of their land claims appeared to be some way off—the Dehcho began looking for potential sites of compromise. In October of 2004, Grand Chief Herb Norwegian showed a willingness to entertain alternative opportunities for engagement. In particular, he stated that the Dehcho would consider dropping its lawsuits against the federal government provided that the federal government (1) show movement on advancing the land claims process, and (2) allow for the

Dehcho to be signatories to the Joint Review Panel with the ability to directly appoint one member to the JRP (News/North 2004). This marked a major concession by the Dehcho, which had previously demanded two appointments to the JRP and finalization of land claims prior to allowing the pipeline project to move forward on Dehcho lands. By 2005, the Dehcho push had mostly fallen apart, and the leadership of the Dehcho First Nations signed a settlement agreement with the federal government in July of that year. The settlement was a far cry from the original demands of the Dehcho; it accepted $15 million in cash, plus a few million more to support

Dehcho participation in the environmental review process. In a major blow to its bargaining

-234- position, the settlement included a clause forbidding the Dehcho from launching further court action against the Mackenzie Valley Resource Management Act as a way to halt pipeline development (Neary 2005).

The move towards these concessions may also be a reflection of increasing contestation within the nation; by late 2004, the Dehcho First Nations leadership was increasingly facing pressure from within its own ranks. Fearing that they would lose out on all opportunities for economic development if they did not engage on the pipeline process, several of the community governments within the region threatened to break away from the larger group negotiations to sign onto the Aboriginal Pipeline Group (Greer 2004). The communities closest to the pipeline pathway, led by the Liidlii Kue First Nation, joined together to form the Dehgah Alliance

Society in November of 2004. The pipeline corridor communities were responding to community concerns that they were falling behind on the negotiation of benefits with industry proponents; however, in doing so, the communities “risked severing the backing of their Dehcho allies” within the region (Greer 2004). These threats to break away from the larger political unit weakened the bargaining position of the Dehcho First Nation, and again disrupted progress as the

Dehgah began pushing an alternative model of benefits, namely a model built on pipeline taxation or ‘payment in lieu of taxes’ (Burnett 2005).

Contestation with the Dehcho was not limited to other Indigenous nations; indeed,

Dehcho conflict accounted for most of the conflict occurring between Indigenous nations and state institutions, including the federal government, regulatory agencies, and the territorial government. Of the 149 conflicts coded between Indigenous national groups and state institutions, conflict with the Dehcho accounts for approximately 57% (85 coded conflicts) as illustrated in Figure 6.7 below.

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Figure 6.7: Sites of Dissent – Minority Nation v. The State (/Majority Nation)113

0 10 20 30 40 50 60 Inuvialuit Gwich'in Sahtu APG

Federal Dene Nation

Government Deh Cho

Inuvialuit Gwich'in Sahtu APG

Dene Nation Agencies Regulatory Deh Cho

Inuvialuit Gwich'in Sahtu APG GNWT Dene Nation Deh Cho

Citizen-Institutional Institutional

By comparison, for those Indigenous nations with settled claims, conflict with the state considerably lower. Issues arising between settled land claims groups tended to focus on concerns over regulatory delay (the lengthy review process of the Joint Review Panel), government assistance in financing or backing the APG joint venture, and the role of government in addressing the social impacts of pipeline development.

6.4 Discussion

As can be seen in both of the Beaufort Offshore Drilling and the Mackenzie Gas Project cases, the finalization of modern treaties in the Northwest Territories has had important implications for regional governance and for the politics of contestation in response to resource development. Three dynamics emerge from the media analysis and will be explored in greater

113 Only N=145 coded conflicts are shown here, as the conflicts between the Akaitcho First Nation and government institutions [N=4] were removed from analysis, for the purposes of consistency.

-236- depth below: (1) the importance of shared-rule institutions as sites of legitimacy; (2) the implications of ‘uneven ground’ for between-group politics; and (3) the influence of institutional fragmentation and consolidation on the politics of dissent.

6.4.1 Shared-Rule Institutions as Sites of Legitimacy

Shared-rule institutions, in the form of environmental regulatory boards, are an important feature of resource politics in the Northwest Territories. The institutions of modern treaties have created new venues for public and Indigenous voices, and the institutionalization increases the ability of Indigenous nations to voice concerns and engage in decision-making processes within the federal architecture (White 2002). The involvement of Indigenous representatives on co- management and regulatory boards, in particular, means that Canada’s model of multinational federalism includes elements of co•production with Indigenous nations in resource politics

(Alcantara and Nelles 2014). The claims boards include Indigenous representatives on the boards themselves, thereby ensuring the presence of Indigenous peoples in decision-making processes.

In the case of the Inuvialuit regional boards—including the EISC and the EIRB—this sense of legitimacy is heightened through two mechanisms. Firstly, the management regime is limited to the Inuvialuit national identity as no other Indigenous nation has representation on these institutions. The exclusivity of the institutions to the Inuvialuit Final Agreement specifically increases a sense of ‘ownership’ by Inuvialuit beneficiaries over these boards, lending legitimacy to the institution and fostering a view that these institutions can and do represent the voices of

Inuvialuit interests in development. Secondly, the Inuvialuit representatives on wildlife co- management organizations are mandated to work in the best interest of the Inuvialuit, as codified in the Inuvialuit Final Agreement. By comparison, the Indigenous-appointed or nominated board

-237- members of the other co-management organizations and claims boards throughout the Northwest

Territories—including the Inuvialuit Environmental Impact Screening Committee (EISE), the

Inuvialuit Environmental Impact Review Board (EIRB), and the Mackenzie Valley

Environmental Impact Board—are expected to act in the public interest, Inuvialuit representatives act for Inuvialuit interests (White 2008). As was seen in the case of the Beaufort

Offshore drilling, it appears that this sense of ownership (created by the connection between national Indigenous identity and institution) combined with the legitimacy of the organization is important for understanding the low levels of Inuvialuit conflict with the regional institutions representing them. Despite the prevalence of arguments by Inuvialuit beneficiaries against offshore drilling activity (relative to the generally positive arguments of Inuvialuit leadership), actual citizen conflict or dissent through protest action, litigation, or even direct disagreement with Inuvialuit leadership remained low.

The importance of shared-rule institutions is also clear in the case of the Mackenzie Gas

Project; differences in the relative access to the Joint Review Panel (JRP)—the negotiated replacement for traditional regulatory processes—was a major site of contestation. Because the

Dehcho lacked a finalized land claim agreement, their participation was not ensured on the panel created to review the project. Instead of being able to directly appoint a representative to the panel (or indeed, the two representatives that they asked for), the federal government appointed a member to act on behalf of the Dehcho First Nations. This put the Dehcho First Nations at a clear disadvantage relative to other Indigenous nations in the NWT, compounding the perceived lack of fairness created by the Mackenzie Gas Project proposal. In particular, the Dehcho were further limited as to their potential economic outcomes and faced losing out on substantial access and benefit agreements with proponents, or economic development due to their lack of a

-238- finalized modern land claim.

For the other Indigenous nations—the Inuvialuit, Gwich’in, and Sahtu—the creation of the Joint Review Panel was a much more legitimate process that maintained their role in regulatory oversight. The process required that the project be reviewed first by the regional regulatory boards, including regional reviews by the Mackenzie Valley Impact Review Board

(MVEIRB) and the Inuvialuit Environmental Impact Screening Committee (EISC). Each of the

MVEIRB and EISC screened the project before recommending a higher level of scrutiny through the Joint Review Panel, thus integrating the existing (legitimate) institutional framework into the process of review. Together, the creation of a regulatory framework that maintained representation of Indigenous nations ultimately dampened contestation between Indigenous minority nations and the institutions of the state. However, this was only true for groups with negotiated land claims agreements and institutionalized bodies of oversight. For the Dehcho, who stood outside of such a legal framework, the newly created regulatory body was highly illegitimate and thus became a target of protest. The extent of contestation over the unequal access to the regulatory framework nonetheless illustrates that these shared-rule institutions play an important role in managing resource politics.

6.4.2 The Implications of “Uneven” Ground – Addressing Regional Inequalities

Despite the generally positive public views on pipeline development, dissent and contestation between the Indigenous nations of the Northwest Territories was the dominant site of contestation in both Beaufort offshore oil development and the Mackenzie Gas Project (the latter being considerably more significant). In the case of the Mackenzie Gas Project, a near- constant theme in the media was the “advantage” felt by some vis-à-vis other groups in the

-239- process. Not only were the Inuvialuit and Gwich’in early to the settlement table on land claims— which enabled their economic development, gave them to access federal dollars, and established administrative governance over resource development—but they were also first to the table as advocates for the Aboriginal Pipeline Group, each with a vested interest in the approval of the pipeline. In addition to economic benefits flowing from an ownership stake in the pipeline, the

Inuvialuit would benefit from development in another important way: most of the land holding the natural gas that would eventually fill the pipeline is found within the boundaries of the ISR.

Meanwhile, the Gwich’in leadership saw considerable economic opportunity associated with contracting and construction. While other groups at the APG negotiating table, including the

Sahtu, had finalized their lands claims, and were interested and willing partners in the venture, other NWT Indigenous nations would not be able to benefit so readily. For the Dehcho, the unequal balance of power was difficult to overcome.

The Northwest Territories lacks an institutional framework to smooth out variation in regional economic benefits. Unlike in Alaska, where there is a regional sharing model embedded in the regional corporations, between-group contestation is heightened in the NWT when variations in resource endowments result in differential costs and benefits. This resource endowment variation was particularly evident in the case of the pipeline project; it crossed several Indigenous territories but introduced greater risks for some groups and greater benefits for others. One of the earliest ideas that was floated as a means of addressing the inequality between regions in pipeline construction strongly echoed that fundamental feature of ANCSA.

Early on in the pipeline negotiation process, the NWT finance minister suggested that First

Nations groups “work out a resource revenue sharing agreement among themselves. A possible framework could look like this: a region could take a portion of their revenue, keep 75 per cent

-240- and redistribute 25 per cent to the other regions” (Barrera 2001). Although the idea never gained much traction, it reflects the institutional reality of Alaska regional corporations (though notably, the ratio is reversed). Arguably, this type of ‘corporate federalism’ works to reduce the inequalities between regions, and subsequently smooth economic interests across a state or territory. It is also a key factor in why we see so much cooperation (or at least, very little contestation) between regional corporations as political actors within the State of Alaska (see chapter seven for more details).

We even see regional contestation arise as a key site of dissent between minority nations in the case of Beaufort offshore drilling, even though the potential impacts of development are constrained primarily to the Inuvialuit region and to the Inuvialuit people. The politics around offshore development are themselves quite fraught, attracting interest from southern environmentalists in greater number than for other types of resource development. Thus, it is perhaps not surprising that the issue garnered interest from other Indigenous nations within the

Northwest Territories. Indeed, despite the potential negative impacts of the development for the

Inuvialuit region, between-group dissent (between the Inuvialuit and other groups) still outnumbers within-group dissent on offshore drilling. Once again, nations with more to gain from the development (namely, the Gwich’in and the Inuvialuit) found themselves at odds with those that took a stance against the development. In this case, the Dene Nation of the Northwest

Territories, and in particular the Dene National Chief Bill Erasmus, argued against offshore development, claiming an ongoing Dene national interest in offshore development. He claimed a strong Dene national interest in the development, noting that “Treaty 11…and some of Treaty 8 goes all the way up to the Arctic Coast. It goes to Coppermine, takes in Paulatuk, takes in Tuk, and goes to the Yukon border. And, because those treaties are international instruments, they go

-241- out 200 miles into the Beaufort Sea, so the Dene do have an interest” (Giilck 2013b). This position was widely condemned by both the Gwich’in Tribal Council and Inuvialuit political organizations. The Gwich’in Tribal Council president spoke out directly against the position of the Dene Nation, noting that “We [the Gwich’in Tribal Council] are an independent organization, and [we] take offence when others take it upon themselves to speak for us or to attempt to represent us, and to make statements that may affect the economy in our settlement area and the future of our people without consulting us” (Robert Alexie Jr., as cited in Giilck

2013b). Meanwhile, in addition to disagreeing with the political position of the Dene National

Chief, the Inuvialuit rejected the premise of his position, claiming that the communities of (and lands around) Paulatuk and Tuktoyaktuk fall under the governance of the Inuvialuit alone, as established by the Inuvialuit Final Agreement.

6.4.3 Accounting for Differences in Within-Group Dynamics

Between-nation contestation—as it related to land claims status—is not the only potential site of dissent amongst minority nations in the Northwest Territories. As suggested by the disagreement noted above between the Gwich’in Tribal Council and its relationship to the larger national body, the Dene National Assembly, another site of potential contestation opens up within-group. This type of contestation is not only relevant where policy frameworks pushed

Indigenous nations to split into smaller national groups in order to realize a more rapid settlement (as has been the case in northern Canada). Institutional design also shapes the political dynamics within these smaller national groups, influencing the perspectives and interests of

Indigenous citizens/members relative to that of the leadership. Although highly coordinated relative to the case of Alaska, there is considerable variation in the degree of institutional

-242- consolidation in the settled and unsettled land claims of the Northwest Territories. While some

Indigenous nations, like the Tlicho, situate regional governance under a single governmental body, others have pursued much more fragmented governance arrangements. The Sahtu region, for example, has implemented a highly fragmented model of governance, reflecting the diversity of the Dene and Métis populations in the institutions that have been created. The land claim created separate community corporations for each of the First Nations and Métis communities, resulting in seven separate corporate entities spread over four communities. The move to self- government is similarly fragmented. Rather than pursue a regional quasi-public government,114 each of the four communities is negotiating a separate self-government agreement with the federal and territorial governments (as yet, only the Deline government has been finalized and implemented). Meanwhile, several of the regions that are today highly consolidated in their governance frameworks will likely experience greater institutional fragmentation. For example, while the Inuvialuit region currently operates under a highly consolidated governance framework, current self-government negotiations place the Inuvialuit on the path toward greater fragmentation: regional leaders are currently negotiating a self-government that will remain organizationally and operationally separate from the long-standing Inuvialuit Regional

Corporation and the Game Council.

The media analysis in the case of the Mackenzie Gas Project hints at the importance of this particular type of cleavage, and its relationship to institutional design. In addition to bearing the brunt of between-group contestation, the Dehcho First Nations—which is characterized by significant institutional fragmentation in the absence of a finalized self-government agreement—

114 Defined as quasi-public by virtue of having some mechanism that would ensure First Nation and Metis representation on the regional council.

-243- also saw considerable within-group contestation. In the absence of a finalized land claim or self- government agreement, the Dehcho First Nations as a whole faced losing out economically as a region. However, some communities would be affected more acutely than others. As negotiations stalled and relations with the federal government and other Indigenous nations declined, those communities closest to the proposed pipeline development increasingly had to contend with the prospect of a future marked by significant ecological impacts and no economic benefits. Those closest to the development weighed the costs and benefits of remaining outside of a negotiated agreement, and subsequently broke rank with the regional organization to create the Dehgah Society to negotiate on behalf of the Dehcho communities nearest to the project.

While the potential for highly differential impacts (or differential benefits) is a natural site for contestation, institutional design can either work to moderate or exacerbate these tensions. In the case of intra-regional variation in the potential effects, institutional design can moderate within-group tensions by smoothing out costs and benefits, or through the creation of legitimate venues where citizens’ voices feel heard. Although most modern treaties in the NWT rely on the regional development corporation as one of the cornerstones of regional governance—with the power to make operational decisions over private collective title—the economic mandate does not solely drive the politics of these organizations, or the trajectory of regional governance more broadly. Many of these organizations pay close attention to the concerns of their membership, balancing off the economic imperative with their role as steward over the land. The simultaneous creation of parallel organizations that privilege the management of renewable and subsistence resources—such as the Hunters and Trappers Committees and the

Game Council in the Inuvialuit Settlement Region—also helps to moderate the impact of economic interests and creates a clear pathway to voice these alternative perspectives.

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Meanwhile, the importance of institutional design for moderating within-group dissent is

apparent in the case of offshore oil and gas development in the Beaufort Sea. Despite being a

highly fraught political issue, it appears that institutional consolidation on the part of the

Inuvialuit may have played a role in dampening protest or contestation by Inuvialuit membership

against the pro-development leadership.

6.5 Conclusion

Within the federal system, the finalization of self-government agreements and modern

treaties has shifted the sites of dissent away from the traditional site of conflict (between

Indigenous-nations and the state) and into new forms. While not all traditional dynamics of

contestation are removed from the system, when we compare Indigenous minority nations who

have finalized agreements with government with those who have not (Figure 6.7, page 233),

there are clear differences. Because the process of federalization moves policy authority and

decision making downwards to newly created governance organizations, concerns are thus

mediated within nations at the sites of authority. However, while the process of federalization

created institutions of self- and shared-rule that are viewed as legitimate by both the state and the

members of the minority nation, the process has opened up new avenues of contestation and

discontent. The introduction of external interests in resource (economic) development creates

conditions that favour competition. With limitations placed on available economic or social

development resources, contestation can become pronounced between Indigenous nations. This

is particularly true in cases where one nation has the potential to benefit over and above others

within a territory or from a particular project. In the case of Canada, the temporal nature of land

claims finalization has embedded important institutional differences in the final agreements.

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These differences have created a degree of uneven treatment that is ripe for disagreement, and because it is embedded in the institutional architecture, will persist as a future important site of political contestation. Moreover, the close relationship between institutions and Indigenous identity has the potential to exacerbate these tensions as it heightens the experience of in-group and out-group status relative to economic wins and losses.

The dynamics illustrated in this chapter also point to the importance of institutional design for moderating in-group contestation. Based on the case analysis, institutional coordination and tight linkages between institutions and national identity appear to heighten institutional legitimacy and smooth within-group dissent. This outcome has important implications for the cross-national case analysis, as the Alaska case is characterized by greater institutional fragmentation and a weaker relationship between Indigenous national identity and institutions created to represent Indigenous political and economic interests. The next chapter will explore these questions further through an investigation of the political dynamics of two resource development projects: the Red Dog Mine development in the NANA region, and offshore drilling exploration in the Beaufort Sea and Chukchi Sea off the coasts of the NANA and North Slope regions of Alaska.

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Chapter 7 – The Red Dog Mine and Offshore Drilling in the Beaufort and Chukchi Seas – Exploring the Political Dynamics of Resource Politics in Alaska (2000-2014)

7.1 The Changing Political Dynamics of Resource Development in Alaska

As in the Northwest Territories (NWT), resource development in Alaska has become much more politically acceptable for Indigenous leadership since the finalization of the modern land claim agreement (ANCSA) in the early 1970s. In contemporary Alaska politics, the regional

Native corporations have asserted themselves as important political and institutional venues for

Native Alaska interests, with a clear bent towards the development of Indigenous-owned resources or the creation of joint venture projects that will employ Native Alaska shareholders.

As in the Northwest Territories, Indigenous political leaders have increasingly come out in favour of resource development, including on projects that at one point were active sites of protest and contestation such as the Trans-Alaska pipeline, the development of oil and gas resources in the Arctic National Wildlife Refuge, the development of major mining projects, and offshore oil and gas exploration.

This chapter presents two cases of major resource development. The first case examines the contemporary politics of the Red Dog Mine, the world’s second largest zinc and iron ore mine, which operates on Indigenous lands in the NANA region in the northwest of Alaska. The second case examines the politics of the exploration and exploitation of offshore oil and gas reserves in the Chukchi and Beaufort Seas, which engages several interested parties throughout

Alaska, though it is primarily concentrated to the Northwest and North Slope regions of the state.

Unlike the case of offshore drilling in the Beaufort Sea, which saw the majority of risks and benefits of development contained to the Inuvialuit Settlement Region and to Inuvialuit

-247- beneficiaries specifically, the Chukchi and Beaufort Sea exploration projects pose risks and opportunities for several Alaska Native regions. In both cases of resource development, Alaska

Native leadership reversed the position from being (at one time) broadly against the projects proposed to being broadly pro-development.

As in my analysis of resource development politics in the Northwest Territories, I categorized arguments in favour of and broadly concerned with resource development along five types of arguments: (1) economic arguments; (2) environmental arguments; (3) governance considerations; (4) process considerations; and (5) social considerations. Again, the coding process notes every mention of a conflict, with care taken to attribute arguments to the individual speaking or to the specific institution a conflict or argument is attributed to. In the case of

Alaska, this close identification was also important in noting the small differences between how an individual was identified, and the group or institution he or she identified themselves as acting on behalf of. For example, in the case of the Red Dog Mine, one of the prominent local voices against the mine expansion was a local tribal administrator. Although she was identified in this role, for much of the debate and conflict over the mine expansion her position of voiced disagreement against development represented the concerns of a small group of villagers in

Kivalina and not the official position of the Native Village of Kivalina (the local tribal government). As such coding reflects the institution, role, or identity that an individual has been primarily identified with at the time of a media report, accounting for these important contextual differences as best as possible. One challenge associated with the coding in the case of offshore drilling was a relative lack of specificity on the part of the identifiers used; due to the nature of the conflicts, it was often the case that large coalitions were created, bringing together several environmental groups and Alaska Native organizations. Thus, in the text of the media coverage,

-248- it was at times difficult to disaggregate which Indigenous governance organizations were being referred to, and whether they were formal institutions (i.e. tribal governments or ANCSA corporations) or informal institutions (i.e. Indigenous environmental groups).

For the coding of the case of the Red Dog Mine expansion, the analysis relies on 196 articles from January 2000 to December of 2010. In the case of offshore drilling in the Chukchi and Beaufort Seas, the case analysis relies on 263 newspaper articles from January 2007 to July

2014, when the Arctic Slope Regional Corporation and six North Slope village corporations announced a joint venture with Shell to move forward with offshore development (Rosen 2014).

Analysis of the cases and the discussion of implications regarding the institutional and political context also relies on interview data with northern leaders and government officials, conducted in Anchorage, Kotzebue, and Barrow between January 2015 and April 2015.

Three core themes emerge from the within-case analysis of Alaska. First, the cases highlight an important, but tenuous, relationship between Indigenous nations and environmental organizations. Compared to the case of the Northwest Territories, in which environmental organizers were consistently treated with derision and mistrust by Indigenous leadership, the relationship between Alaska Native organizations and environmental groups is not so uniformly negative. Moreover, the decision to partner with environmental groups speaks to the relative lack of leverage that Indigenous nations have within the United States federal system. Based on the two case studies, Indigenous organizations appear to rely on coalitions with environmental groups as a means to access resources and engage in litigation, one of the few avenues to affect regulatory processes and decisions. Secondly, the case analyses suggest that shared rule institutions are key to facilitating the shift of contestation away from the traditional site (between the minority nation and the state) and into other forms. The relegation of Indigenous nations to

-249- the status of ‘interest groups’ in the regulatory process undermined the legitimacy of state decision making, and eroded trust in the process. Even in the case of the Red Dog Mine, where co-management organizations were set up between the local community (Kivalina) and the industry partner, state regulators continued to face considerable pushback from Indigenous citizens and institutions.

Thirdly, though the traditional site of contestation (between minority nation and the state) remains highly salient, there are also important institutional design implications for within-group contestation. In both the cases of the Red Dog Mine and offshore exploration and drilling (but particularly the former), it appears that institutional fragmentation has played an important role in heightening within-group dissent. This within-group contestation takes two forms, depending on the case. In the case of the Red Dog Mine, contestation is primarily vertical in nature, occurring between local citizens and institutions and their regional counterparts. Meanwhile, in the case of offshore drilling, contestation is primarily horizontal in nature, with conflict occurring between different regional organizations all purporting to represent the same group of people, the Inupiat of the North Slope.

The chapter proceeds with the case of the Red Dog Mine expansion presented first, before proceeding to its analysis of Chukchi and Beaufort offshore drilling. I first explore the dynamics at play internal to the NANA region of Alaska prior to exploring the politics of the

NANA and North Slope regions within the broader state context. The chapter ends by exploring common features of the two cases and highlighting the patterns of political conflict relative to the expected phenomenon discussed in chapter five. Based on the empirical analysis of expected patterns of conflict, I hypothesize that the two cases in the Alaska will exhibit greater contestation between minority nations and the state and greater within-group conflict dynamics,

-250- due to the heightened degree of institutional fragmentation relative to the cases of the Northwest

Territories. As well, given the relatively weaker linkages between national identities and the institutions created since ANCSA in 1971, I expect that between-group conflicts will be less pronounced. This between-group conflict is also expected to be lower, in part due to institutional mechanisms (namely, resource revenue sharing between regions) that help to lessen regional disparities stemming from resource development.

7.2 Primary Case: The Red Dog Mine (2000-2010)

Located in Northwest Alaska, the site of the Red Dog Mine first came to the attention of geologists in the 1950s; the resources were so abundant that the site is one of largest known deposits of lead and zinc in the world. The site gained increased attention in the late 1970s as land in Alaska was parceled up between the land allocations under ANCSA, under state selections, and through the designation of federal parks and protected lands. In the mid- to late-

1970s, the site was slated in this last category, to be included in national parks under the federal government’s allocation of lands within the new state of Alaska. Developers were actively interested in keeping access to the land open for development, however, there were few real opportunities to do so. State politicians had lobbied the federal government not to include the land in the national parks designation, to no avail. As any development revenues would accrue to the state, the federal government itself had minimal stake in the potential resource prospect.

Meanwhile, the disbursement of land was itself a federal process; the State of Alaska (still without clear title) had little opportunity to claim those lands as state property. One option, however, remained open to developers—the ANCSA process of land claims, which were still being adjudicated and settled throughout the State of Alaska. In this case, the federal government

-251- had an interest in promoting the economic development of Alaska Natives, which would make the proposal potentially more attractive to federal actors.

In a rare move, the developers (Cominco America) approached the NANA Regional

Corporation and informed NANA leadership of the potential value of the subsurface resources lying within the boundaries created by ANCSA, but which, as yet, had gone unclaimed by the

Native leadership. Because the Red Dog Mine lands were not part of the original allocation made to the Western Arctic Inupiat in the ANCSA settlement, Cominco Ltd. urged the Inupiat to petition for these lands as part of a second allocation period in the late 1970s (as a means to ensure that the lands would not be allocated as national parks instead). Once NANA owned the lands, it could lease those lands to Cominco for development. The regional corporation agreed to claim the lands as part of their new allotment but came back with three important caveats.

Firstly, NANA would claim the lands under an updated land disbursement process initiated under ANCSA, but they would undertake an open bidding process for the development of the mine. Secondly, mine development would not move ahead until the shareholders clearly voted in favour of development. And thirdly, in the case that mine development advanced, NANA shareholders would be involved in mine oversight, and would reserve the right to shut down the mine, at any time, over any environmental or subsistence concerns (NANA, Inc. 1982).

NANA, Inc. submitted its claim to the Red Dog lands in 1980, and immediately began exploring development options. However, true to its promise, the regional corporation refused to move ahead with active development until shareholders bought into the prospect of development.

In order to gauge shareholder support for the project, semi-annual town halls were conducted with shareholders in the region to talk about the proposed project, and discuss questions and concerns (NANA, Inc. 1978). During the late 1970s, as NANA moved forward with its plan to

-252- select the mineral-rich lands, NANA held regular meetings with its shareholders. Although

NANA leadership was clearly interested in exploring the potential of resource development, corporate documentation from the time notes that the executive committee held fast to its commitment to a democratic process of decision making on development. NANA leadership attempted to stay neutral on the issue into the late 1970s, as its shareholders continued to hold fast to their concerns. A newsletter from the time reports that John Schaeffer, then NANA president, noted “your board of directors and staff are not taking a position on this [Red Dog development]. It’s up to you [the shareholders]. You’ve made subsistence your No. 1 priority and we won’t allow mineral development on NANA lands until you want us to” (NANA, Inc.

1978).

In the early 1980s, the federal government transferred the Red Dog lands to the NANA

Regional Corporation, while NANA shareholders had begun to come around to the prospect of development. In February of 1982, NANA and Cominco had reached an agreement regarding the lease of the mineral-rich lands from the NANA Regional Corporation. In addition to making

Cominco responsible for the design, construction, and operation of the mine, the agreement set out specific assurances regarding the maintenance of Native values, land protection and protection of subsistence resources, and commitments around local hiring (NANA Regional

Corporation 1983c). Two important governance features were particularly innovative for the joint venture. Firstly, the Elders Councils from Kivalina and Noatak (the two villages closest to the Red Dog deposits) served as advisors on all parts of the project related to subsistence.

Secondly, the project created a Subsistence Advisory Committee comprised of nine community members (elders) from Kivalina and Noatak. This committee would oversee and report on local subsistence resources, and work to Cominco and NANA to address any concerns about the

-253- environment during the development and operation of the mine. Importantly, the Subsistence

Advisory Committee would reserve the right to have final say on subsistence issues or halt operations at any time in the case of significant subsistence conflicts (NANA, Inc. 1982). The agreement also put forward a novel funding structure for royalties. With Cominco putting up the capital for the mine development, early royalties would be low (in the range of approximately

5%) until the costs of mine development had been fully repaid. However, after the costs had been recouped, NANA would receive a progressively larger share of royalties, beginning at 25% in year one after repayment, and increasing 5% per year to 50% of revenues. The mine officially opened in 1989.

By the early 1990s, Kivalina—the community closest to the Red Dog Mine—began to voice concerns regarding the impacts of the mine on subsistence resources and on the local environment. Issues related to the local sources of drinking water caused Cominco to divert the

Red Dog Creek away from natural seeps and faults, where it had been picking up mineral deposits and heavy metals (NANA Inc., 1990). However, these remedial efforts failed to fully address the local concerns bubbling to the surface, and early sites of disagreement and conflict began to emerge. In the 1990 Annual Report, the NANA chairperson and NANA president together warned against the perils of lack of communication stemming from community concerns over the environment. In their address to shareholders, Christina Westlake and Roswell

L. Schaeffer wrote, “Communication is the key to solving problems. If one party fails to respond when a crisis occurs, fear and rumors can and will lead to hysteria” (NANA Inc., 1990; p. 7 - emphasis added). The statement itself clearly balances two priorities: on the one hand, NANA leadership is chastising Cominco for a slow response that lacked transparency; however, on the other hand, by drawing attention to community ‘hysteria’, the NANA leadership began to shape

-254- a discourse around the legitimacy of the fears and claims being put forward by the villagers of

Kivalina. Ultimately, they reassured shareholders that “NANA is dedicated to the preservation of the Inupiaq way of life and its natural resources – we believe Cominco is too. Through this partnership we hope to avoid any and all problems of this type in the future” (NANA Inc., 1990; p. 7).

Other issues cropped up during implementation of the project; local hiring numbers were not as high as Cominco Ltd. had committed to,115 and the economic benefits of the mine (in terms of resource royalties paid to NANA, and subsequently redistributed as dividends to shareholders) were slow to roll out. Shortly after the mine went into operation, zinc prices bottomed out. With mine profits reduced significantly over the early life of the project, repayment of the start-up costs of the mine took over twice as long as the originally estimated time horizon. By the mid-1990s, the first deposit mined at Red Dog was beginning to deplete, and Cominco executives looked to expand the mining operation into adjacent sites. NANA had not yet benefitted financially from the major economic windfalls that had been promised under the original agreement. With major payouts to NANA just over the horizon, Cominco Ltd. and the NANA Regional Corporation announced plans in 1996 to expand the mining project into a site adjacent to the original mining development and build a deep-water port to enhance the capacity of the project.

As plans to expand the Red Dog mine into the adjacent site began to ramp up in the early

2000s, persistent concerns from NANA shareholders and villagers took center stage. In April of

2000, the Kivalina Tribal Government took out a full-page ad in the Arctic Sounder (a weekly northern-Alaska paper) publicly opposing the proposed port development included in the mine

115 NANA and Cominco, Ltd. continue to work towards 100% shareholder hire.

-255- expansion. The tribal government raised several concerns about the port, including potential impacts on local sea mammals, and subsequently, on the subsistence hunting that local villagers depend upon. In the ad, the tribal government took direct aim at the NANA Regional

Corporation, and claimed that the corporation was ignoring village concerns as it pushed forward with the development (Dobbyn 2000).

In 2000 and 2001, federal and state regulatory agencies released several successive reports that highlighted environmental concerns about the mine and added fuel to local contestation over the expansion and port development. In July of 2000, the Environmental

Protection Agency (EPA) released its annual report “Toxic Release Inventory: Community Right to Know.” For the third year in a row, the EPA included waste rock—a byproduct of mining—in national reporting requirements, subsequently increasing the reported environmental impact of mining sites (Ballard 2004). Although the absolute volume of waste rock produced during mining operations can be large, the product itself, according to the Commissioner of Alaska’s

Department of Environmental Conservation, contains only “minute quantities of reportable substances, such as lead and zinc, naturally occurring minerals that remain in the rock after it is mined” (Ballard 2004), and thus does not pose significant environmental risks.116 Nonetheless, the place of the Red Dog Mine as the top producer of waste rock in the state (and thus by this metric, the most significant polluter in the state), galvanized support against the mine expansion.

Two other reports also drew negative attention to the mine. In April of 2001, the Alaska

Department of Environmental Conservation (DEC) confirmed that it had detected a slew of air pollution violations at the Red Dog Mine during inspections in the fall of 2000. The agency

116 The EPA also notes in its annual report that its toxic release inventory does not necessarily correspond to associated risks for public health and the environment.

-256- recorded 18 violations, charging the mine for “knowingly operating equipment that exceeded emissions limits, failing to report the pollution violations and failing to conduct monitoring”

(Dobbyn 2001). Just two months later, the National Park Service released a report documenting heavy-metal contamination along the haul road between the Red Dog Mine and the existing port.

Testing of moss and soil samples revealed elevated levels of lead, zinc, and cadmium along the haul road. Although the road itself was designated as an industrial site (and thus off-limits for subsistence harvesting), the local Inupiat community raised several concerns about this contamination on subsistence practices and on the health of the Inupiat peoples near to the mine.

In response to the report, the Native Village of Kivalina—with support from the Northern Center for the Environment and the Alaska Center of the Environment—filed a formal petition the DEC to halt ore hauling along the road (Schell 2001).

In July of 2002, Teck Cominco117 withdrew its plans for the port expansion on the coast of the Chukchi Sea. The project had already faced several years of public backlash, as environmentalists and the Kivalina Tribal Council worked together to enact several regulatory or institutional roadblocks. This action included a lawsuit against the U.S. Army Corps of

Engineers, which had completed the environmental analysis on the port project. These barriers to development, combined with regulatory delays118 and plummeting zinc prices, caused Teck to back off from one of the more problematic elements of the expansion (Dobbyn 2002b).

117 In 1986, Teck acquired an initial interest in Cominco, Ltd. Teck acquired 100% of Cominco in 2001, prompting the name change to Teck Cominco. 118 The expansion of the mine into the adjacent site also faced several regulatory hurdles, as federal and state regulators fought over the order of government in charge of permitting different aspects of the mine. In order to increase the production capacity of the mine, Cominco filed for permission to add a diesel generator to the site to produce more electricity. However, while the state regulatory authority—the Department of Environmental Conservation—approved the permit, the federal Environmental Protection Agency overturned the decision arguing that enforcement of the Clean Air Act is federal authority (Whitney 2000).

-257-

Despite this attempt to diffuse local protest against the mine, the citizens and institutions of the community of Kivalina continued to push against the mine development. In 2002, a group of Kivalina residents announced their intention to sue Teck Cominco for $88 million in damages stemming from over 2,171 water quality violations at the Red Dog mine in the preceding decade

(Dobbyn 2002a). The villagers sued under a provision of the federal Clean Water Act, which allows residents to seek penalties when permit holders violate the act (Bluemink 2008). In 2004, the violations were revised downwards to 1,951 separate violations (Dobbyn 2006). The mine countered on the quality of drinking water, noting that the company in fact improved the water quality of the Red Dog Creek, by diverting it from its naturally occurring route through the ore deposit where it picked up minerals and became highly acidic (Dobbyn 2004). Two of the major regional organizations—the NANA Regional Corporation and the Northwest Arctic Borough— sided with the Red Dog mine leadership, both in terms of the content of the debate, and also as official interveners on the lawsuit. In 2006, the U.S. District Court found that the company had violated its permit 618 times, while reserving the remainder of the charged violations to be argued at trial (Dobbyn 2006). In 2008, just days before the trial was about to begin, the residents of Kivalina finalized a settlement with the company, and in negotiation with the NANA Regional

Corporation and the Northwest Arctic Borough. As part of the agreement, Teck Cominco agreed to build a 55-mile wastewater pipeline from the mine site to the port, meaning that the mine would no longer discharge wastewater into the Wulik River, the river from which the village of

Kivalina obtains its drinking water (Anchorage Daily News 2009b).

As the Red Dog mine continued to face challenges from Kivalina residents and institutions and face regulatory delays at both the state and federal level, support for the mine development ultimately grew within the region, and other regional and local organizations came

-258- on board to officially support the mine development. In March of 2010, the IRA Council of

Kivalina, the IRA Council of Point Hope, and five citizens of Kivalina—together represented by lawyers from two environmental organizations, the Northern Alaska Environmental Center, and

Alaska Community Action on Toxics—filed yet another challenge against the expansion, appealing the permit renewal requested by the Red Dog Mine (Bluemink 2010a). The National

Pollutant Discharge Elimination System (NPDES) permit, which the mine had operated under for many years, required renewal in order to extend production into the adjacent Aqqaluk

Deposit, which promised to extend the life of the mine an additional 20 years (Wozniak 2010a).

In opposition to the Kivalina and Point Hope tribal governments, the NANA Regional

Corporation, along with nine other organizations in the region, passed resolutions or submitted formal notices supporting the permitting of the Aqqaluk Deposit. The support brought together a mix of public and Indigenous organizations, including the Northwest Arctic Borough, Maniilaq

Association, the Northwest Arctic Borough School District, ANCSA Regional Association, the

Traditional Village Council of Kiana, the Native Community of Noorvik, the City of Noorvik, the Native Village of Kotzebue, and the Deering IRA (tribal government). By March of 2010, that list had grown to twenty organizations (Wozniak 2010b).

7.2.1 Media Analysis – The Changing Nature of the Debate

The media analysis covers ten years of public debate, from January 2000 to December

2010, with 196 newspaper articles coded. The thematic analysis shows that the relative favourability of the project increased over time. Meanwhile, legal challenges mounted against the mine expansion (or in response to specific complaints over environmental or regulatory standards) failed to advance through the courts. Through the thematic analysis, 502 references

-259- were coded in favour of the mine expansion, while 368 references were coded that raised concerns about development. Figure 7.1 (below) highlights the relative breakdown of arguments for and against the Red Dog Mine over the ten-year period of public debate:

Figure 7.1: Proportion of Debate For/Against the Red Dog Mine Expansion [N=870]

100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Arguments Against Development Arguments in Favour of Development

The few years following the initial proposal to expand the mine saw a significantly greater proportion of the debate focused on arguments against development, with an additional breakthrough of negative argumentation in 2005 and 2006.119 The peaks are associated with different phases of the proposal, but the early years (in particular) were marked by several setbacks for NANA and Teck Cominco in their advancement of the project and its favourability.

The peaks of negative argumentation correspond with particularly intense periods of negative attention prompted by state and federal reports on the environmental performance and implications of the mine. The first negative peak, from 2000-2002, corresponds with the release of reports from the Environmental Protection Agency, the Alaska Department of Environmental

119 Although, part of this peak is also a due to a corresponding drop in overall coverage in 2005 and 2006, which decreased the overall amount of argumentation in those years, causing some skew.

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Conservation, and the National Park Service. Each report highlighted a different set of concerns regarding the health and safety implications of the mine for the local population, galvanizing protest against further development. The second peak, from 2005-2006, generally corresponds with a second period of attention on the toxic releases, and a finding that the Red Dog Mine had violated its water quality standards over 600 times (Dobbyn 2006)

Unlike the case of the Northwest Territories, the predominant voices in the public debate were not Indigenous citizens and institutions. Only 34.5 percent (N = 301) of coded arguments were attributed to Indigenous national groups and/or their leadership, and of those, 285 were coded to Indigenous individuals and institutions in the NANA region.120 Despite the relatively lesser profile of Indigenous voices in the public debate, the data show that an important debate was happening within the Inupiat population of the NANA region. Indeed, the perspectives of

Indigenous peoples and institutions within the NANA region were quite divided.

120 This relatively lesser profile of Indigenous voices within the debate speaks to two potential sites of difference: (1) stronger civil society presence in Alaska, larger relative voice of environmental and citizen groups that can overtake Indigenous voices in the public debate; (2) difference in the source of data; though the Anchorage Daily Times is in many ways comparable to News/North, Anchorage is a much more heavily entrenched settler community, and is much larger than Yellowknife. The use of a more local paper (i.e. the Tundra Times) might result in more comparable results re: the weight of Indigenous voices, but there were several barriers to accessing these data in a consistent fashion.

-261-

Figure 7.2: Proportion of Arguments For/Against Development, NANA Region [N = 285]

0% 20% 40% 60% 80% 100%

NANA Citizens [N=94] Kivalina Villagers/Residents [67%] Northwest Arctic Villagers [6%] NANA Shareholders [27%]

NANA Institutions-Leaders [N=191] Kivalina Tribal Govt [27%] NANA Regional Corp. [65%] Northwest Arctic Borough [3%] Other Local Tribal Govts [5%]

Arguments against development Arguments in favour of development

The citizen/public debate saw overwhelmingly negative views voiced by Kivalina villagers

(upwards of 90% negative argumentation), while individuals primarily identified as ‘NANA

Shareholders’ tended to favour the mine expansion (approximately 65% of arguments were voiced in favour of development). From the institutional perspective, the Kivalina Tribal

Government came out strongly against the mine expansion, particularly at the beginning of the public debate over concerns regarding port development. Yet despite the clear concerns voiced by the community closest to the mine (in both public and institutional contexts), the NANA

Regional Corporation, the Northwest Arctic Borough, and other tribal governments within the region overwhelmingly favoured development: This disparity between the perspective of

NANA-region citizens and the institutions that represented them meant the region was ripe for within-group conflict.

-262-

7.2.2 Dynamics of Dissent in the NANA Region

Over the ten-year period of media coverage, a total of 523 conflicts were coded, of which nearly 21% (or 109 conflicts) occurred within and between Indigenous nations and institutions.

Like the case of Beaufort offshore drilling in the Inuvialuit Settlement Region, the public debate created ample conditions for conflict between Indigenous citizens and the institutions that represent them. Unlike the case of the Beaufort offshore, that conflict potential manifested itself very clearly within the Inupiat of the NANA region. Of the 109 coded conflicts occurring within the Alaska Native population (both citizens and institutions), the vast majority (102 conflicts) occurred within the Inupiat of the Western Arctic, the minority national group associated with the NANA region. Meanwhile, no conflicts were coded as occurring between the ANCSA regions, in clear contrast to the Canadian cases.

Figure 7.3: Sites of Dissent – Within-Group Dissent in the NANA Region [N=102]

0 5 10 15 20 25 30 35 40

[L-L]

[L-R] Region Citizen-Citizen WithinNANA [R-R] Citizen-Institution

[L-L] Institution-Institution

[L-R]

BetweenNANA [R-R] RegionDog Red -

Among the Inupiat of the NANA region, conflict is primarily located at two sites. Firstly, the conflict is driven by citizen dissent. Citizen-institutional conflict (marked by individuals speaking out against or launching actions against the institutions designed to represent them)

-263- makes up 59% of coded conflicts, while citizen conflict (between individuals) makes up an additional 8%. Secondly, the majority of conflicts occurred between localities and local-regional spaces ([L-L] and [L-R] in the chart). For example, a locally constrained conflict could be between the Kivalina Tribal Government (local institution) and the Tribal Government of

Kotzebue (local institution). The majority of the conflict noted in Figure 7.3 reflects dissent between the residents and institutions of Kivalina against the rest of the NANA region. Unlike

Kivalina villagers, the majority of NANA citizens and institutions came out in favour of the mine expansion. Citizen dissent ultimately dominated the dynamics of regional conflict; 63 conflicts involved Kivalina residents-citizens, while 29 conflicts involved local institutions of Kivalina

(the tribal government or the local municipal government).

Kivalina citizens and institutions also took several direct actions against the Red Dog

Mine specifically. Although technically operated by Teck Cominco, the Red Dog Mine is considered within the framework of within-group dissent for two reasons. Firstly, the mine is a joint venture between Teck and the NANA Regional Corporation, and thus decisions and positions taken by the mine are inherently linked to NANA leadership. Secondly, and because of this relationship, NANA leadership consistently supported the position of the mine in terms of its perspective on its environmental record, and its responsibilities to the local population. In the course of the debate, there are only two instances of conflict where the NANA Regional

Corporation was at odds with the Red Dog Mine, expressing dissatisfaction over the fact that mine had failed to live up to the economic expectations of native leadership, and of the Inupiat people of the NANA region. Of the negative arguments coded to Kivalina citizens and institutions, the debate focused overwhelmingly on the social implications stemming from mine development. In particular, villagers raised concerns about the mine’s effect on the health of

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Kivalina residents (stemming from concerns over drinking water and the heavy metal dust from the haul road), as well as implications for local culture as it related to the subsistence practices of

Kivalina villagers.

Table 7.1: Kivalina Citizens & Institutions – Arguments Against the Red Dog Mine [N=126]

Theme Kivalina [N=107] NANA [N=17] Economic 3 2 Benefits of development are disproportional 3 1 Environmental 21 7 Development will cause significant pollution 10 7 Impacts of development are disproportional 3 - Pollution effects vegetation and wildlife 2 - Governance / / Process 20 4 Consultation - - Lack of consultation on project development 6 1 Lack of trust 6 1 Representational concerns (conflicts of interest) 1 - Screening process is inadequate 7 - Social 62 6 Benefits/jobs will bypass the north - 1 Development will affect culture & subsistence 39 4 Development will affect health 23 1

As we can see in Table 7.1 above, the concerns raised by the citizens and governments of

Kivalina stand starkly at odds with the promises coming from regional leadership. While NANA leadership publicly supported the mine, villagers in the community of Kivalina grew increasingly concerned with the potential impacts of the existing mine, as well as the prospect of expansion.

Villagers had long complained about the mine’s impact on local water supplies, and on fish and wildlife in the region. As such, their argumentation overwhelmingly focused on the potential implications of the mine expansion on their Inupiat culture and on their subsistence practices

(two elements intrinsically tied together). With the reports released from the EPA on the state’s

“Toxic Release Inventory,” Kivalina villagers also grew increasingly concerned about the health impacts of the mine.

-265-

As Kivalina villagers raised such concerns, the leadership of NANA continued to hold the line and support the expansion of the Red Dog Mine. Nonetheless, NANA leadership maintained that the concerns of Kivalina villagers were not warranted, maintaining that the

NANA Regional Corporation would “not compromise the lives of our shareholders and subsistence because of money…If it can be shown that the mine is compromising the environment and the subsistence resources that our shareholders rely on, then we will shut down the mine” (Helvi Sandvik, CEO of the NANA Development Crporaiton, as quoted in Schell

2001).

As was true in the case of the Mackenzie Gas Project in Canada, these trends in the Red

Dog Mine project stem from uneven ground in project development, with some NANA communities disproportionately affected by development. In particular, the community of

Kivalina faced many of the environmental effects of development, while not necessarily benefiting from development. In other Alaska Native regions, the regional corporations redistribute the resource revenues from subsurface development to their local corporations.

However, Kivalina’s community corporation was folded into the NANA corporation in the

1980s, diminishing the economic opportunities and curtailing the ability of the community to engage on project development. Even job opportunities for Kivalina villagers at the mine were scarce. Although geographically close to the development site, in 2004, only 13 of the 380 residents of Kivalina worked at the mine (Dobbyn 2004). Because of this, the town feels as though it does not “reap that much from its industrial neighbor” (Kivalina Mayor, Myra Henry, as cited in Dobbyn 2004). Meanwhile, many of the administrative dollars flowed through the regional center, Kotzebue, home to both the headquarters of the NANA Regional Corporation

(which receives royalty dollars from the mine development) and the Northwest Arctic Borough

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(which receives payment in lieu of taxes from Teck Cominco for development on the lands). The benefits accrued to the region ultimately smooth support by regional organizations for continued development, thereby dampening potential sites of conflict between regional organizations.

Figure 7.4: Sites of Dissent – Minority Nation vs. The State (/Majority Nation) [N=105]

0 5 10 15 20 25 30 35 40

Federal Govt

Federal Regulatory Agencies

State Regulatory Agencies Citizen Institutional State Govt

Advocacy Organizations

Industry

The patterns of dissent and contestation noted in Figure 7.4 highlight some important patterns. Firstly, and unlike political dissent in the Northwest Territories, contestation against the

Red Dog Mine occurred much more through direct citizen contestation; of the 105 coded conflicts noted between NANA Inupiat individuals and institutions, 59 were coded to individuals while 46 were coded to institutions. Citizen dissent tended to be directly primarily towards industry (in this case, Teck Cominco which ran the mine). This clearly contrasts with the behaviour of Indigenous institutions and leadership in the region, which register very little conflict (in line with their economic interests).

While there were a few examples of the local tribal government standing in opposition to the proposed development, most of the Indigenous organizations, including the de facto regional

Indigenous government (the borough), favoured the mine expansion. Instead, the primary sites of conflict between Indigenous governance organizations and the state/majority nations were with advocacy organizations (including environmental groups) and regulatory agencies, like the EPA,

-267- which were viewed as holding up the progress of the project. Citizen dissent also engaged with the state and regulatory system, however, there is an important difference in the focus of the contestation relative to the institutional conflict. Citizen contestation against the federal and state regulatory agencies tended to focus on the failure of these organizations to appropriately engage local citizens in consultation processes, or to manage the environmental impacts of the mine for the purposes of subsistence.

The case of the Red Dog Mines provides a view into the ways in which institutional configurations manage the interests of Indigenous national minorities, shaping the dynamics of political conflict in Alaska. The next section of the chapter looks at the dynamics at play in the case of resource politics that affect the Alaska Northwest and North Slope regions. The case of offshore oil and gas exploration and development highlights several of the same trends, in particular, considerable conflict with state institutions.

7.2 Common Case: Beaufort & Chukchi Offshore Drilling (2007-2014)

Oil and gas production in Alaska is a well-established pillar of the state’s economy; production of oil and gas resources began in earnest in the late 1970s following the settlement of

ANCSA and the disbursement of lands to the state government and to the Alaska Native corporations. Major industry players, the state government, and Alaska Native corporations alike have benefited from oil and gas development. However, until the mid-2000s, nearly all production in the state had occurred onshore and in the near-shore waters of the Beaufort Sea; offshore drilling had—for the most part—not been a part of the picture. While the federal government had offered up lease sales for near-shore parcels in the Beaufort in 1982, as well as some offshore parcels in the Chukchi Sea in the late 1980s, offshore activity had been relatively

-268- limited. Shell drilled only four exploratory wells in the Chukchi Sea between 1989 and 1991 before it opted to abandon its leases as economic winds shifted against continued investment

(Loy 2008a; Demer 2014).

As economic headwinds weakened in the early 2000s, offshore development began to look more promising. For the federal government, oil development off the coast of Alaska offered both economic potential and improved energy security for the country. Government and industry estimates suggest that offshore oil production in the Arctic waters of the United States could yield upwards of 19 billion barrels of oil and 74 trillion cubic feet of natural gas (Bolstad

2010). In 2005, in an effort to begin to tap into that resource potential, the Bush administration opened up parcels in the Beaufort Sea. Shell dominated the lease sale, paying out $44 million in winning bids. Three years later, and for the first time since 1991, the federal government held an

Outer Continental Shelf lease sale in the Chukchi Sea. Once again, Shell dominated the sale, this time paying out nearly $2.2 billion for offshore drilling rights for the better part of 2.7 million acres of leasing blocks.121

Though offshore drilling had been very limited off the coast of Alaska up until this point, the state was no stranger to the potential environmental implications of offshore development. As the federal government moved ahead with its planned lease sales, the prospect of new exploration and drilling raised the specter of one of the most significant environmental disasters in the history of the United States: the Exxon Valdez disaster of 1989, which spilled 11 million gallons of oil into Prince William Sound and fouled more than 1,000 miles of Alaska coastline

(Taylor 2014). While Valdez was technically not a disaster stemming from offshore drilling, the experience highlighted what could happen in the event of a major offshore spill tied to

121 The next largest bidder was Conoco Phillips, which secured $400 million worth of leases.

-269- exploration and development of Alaska’s offshore resources. The spill occurred when the oil tanker, loaded with oil bound for the southern United States market, struck a reef in Prince

William Sound, tearing open the hull. As the federal government embarked on its lease sales nearly 20 years on, the impacts of the Valdez oil spill were still being felt by the Alaska environment, wildlife, and Alaska Native peoples through limitations to their subsistence practices.

The prospect of drilling offshore of Alaska raised several other latent political issues, as the cost-benefit tradeoffs for offshore development are considerably different relative to other types of resources. Unlike the majority of oil development in the Alaska, offshore drilling offers limited economic benefits for the state. Offshore parcels are federally owned and leased. All of the $2.6 billion in revenue from the Chukchi lease sale bypassed the state as it was deposited into federal coffers; none of the revenues accrued to the state, to the nearest borough governments

(the North Slope and Northwest Arctic Boroughs), or to the regional Native corporations. This is not to say that there are no potential economic benefits. The State of Alaska can tax any offshore oil that uses onshore infrastructure, including the use of pipeline infrastructure to move northern offshore production down to southern markets, and state political leaders hoped that the oil from offshore development would fill the Trans-Alaska pipeline, which was operating at one-third capacity. Similar economic propositions faced the Inupiat along the Northwest and North Slope regions of Alaska (closest to the lease sales). While offshore development could not be taxed directly by the Borough governments,122 the borough governments would be able to tax any

122 In 2008, the North Slope Borough had an operating budget of $288 million. Seventy-four percent of the Borough’s revenues came from property taxes on onshore oil fields operated by BP, Conoco Phillips, and Exxon Mobil. It is important to note that this revenue is separate from the economic returns from resource revenues accrued to the Arctic Slope Regional Corporation, which leases lands for onshore oil and gas development and is heavily engaged in contracting to industry.

-270- onshore development within their borders—including physical infrastructure and worker camps—that are required to maintain offshore operations (Anchorage Daily News 2008e).

Meanwhile, the ANCSA Regional Corporations could benefit through contracting to industry with businesses related to exploration and development (including in transportation, construction, or catering/security services for camps, etc.).

That no single Alaska Native corporation had an ownership stake in offshore development changed the political dynamic to some degree, as it meant that the Alaska Native corporations had an equal opportunity to benefit from development through contracting services.

Also affecting regional dynamics is the fact that, unlike the case of the Beaufort offshore in the

NWT, the relative risks of development are somewhat more diffuse. Whereas the Inuvialuit are the only coastal Indigenous population in the NWT, three Alaska Native regions abut the

Chukchi Sea—the North Slope, the NANA region, and the Bering Straits region—while offshore drilling in the Beaufort Sea primarily affects the North Slope region. The environmental implications of offshore development have the potential to travel further afield to other coastal nations in Alaska, thus engaging more Indigenous communities and nations in the debate.

While the first federal lease sales of the Beaufort near-shore parcels to Shell in 2005 raised some environmental concerns, political action against development was initially quite limited. The 2005 sale was relatively small, and Shell had a history of success in the region— including a reputation for high safety standards, and no adverse events from drilling. As well, the sale remained in relatively near-shore waters that meant drilling depths were fairly shallow, and thus less risky. The 2008 Chukchi lease sale, however, was markedly different and spurred considerable political contestation. The Chukchi lease sale on the Outer Continental Shelf opened up nearly 46,000 square miles for development (Anchorage Daily News 2008a).

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Although Shell, with its solid reputation, was the winning bidder for the majority of the leased parcels, the prospect of much deeper Arctic drilling put environmentalists on notice. Almost immediately following the sales, a coalition of environmental groups and Alaska Natives— including the Native Village of Point Hope, the City of Point Hope, the Inupiat Community of the Arctic Slope (ICAS), and Resisting Environmental Destruction on Indigenous Lands

(REDOIL), an Alaska Native environmental non-profit—challenged the federal lease sale

(Schertow 2008). By May of that year, Native groups and environmentalists had partnered on no fewer than five separate lawsuits aimed at blocking exploration and drilling in the Chukchi Sea

(Anchorage Daily News 2008c).

The lawsuits took aim at all angles of the Chukchi sales. In one lawsuit, Alaska Native and environmental groups challenged the federal permits allowing for seismic exploration, charging that the federal government had violated its own environmental protection laws

(Anchorage Daily News 2008c). In another, the Center for Biological Diversity led a coalition of

Alaska Native groups and environmentalists to sue the Mineral Management Services (in charge of the offshore sale), claiming that the federal government had failed to disclose documents showing the harmful effects that offshore drilling would have on polar bears and other marine mammals (Anchorage Daily News 2008b). The action against the Chukchi sale also galvanized opponents against offshore exploration in the Beaufort parcels; the North Slope Borough, along with the Alaska Eskimo Whaling Commission (AEWC),123 and several environmental groups came together to block Shell’s plans to conduct exploratory drilling in the Beaufort Sea (Loy

2008b).

123 The AEWC is an association that governs Alaska Eskimo whalers who hunt bowhead whales along the North Slope and Western Arctic shores of Alaska

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The lawsuits by the coalition of Indigenous tribal organizations and environmental nonprofits were far from frivolous. In January of 2008, a federal judge ruled in favour of the coalition, agreeing that the federal government had failed to follow its own environmental laws when it conducted the lease sale, and ordering further environmental reviews to take place

(Anchorage Daily News 2008h). Shell’s Beaufort Sea leases were similarly stalled by court challenges. A decision in November of 2008 sided with Alaska Native groups and environmentalists, finding that the U.S. federal government had failed to sufficiently consider how oil and gas exploration would affect local wildlife, and thus the subsistence hunting and fishing of the Inupiat of northern Alaska. Finding this, the decision determined that the federal government had improperly granted permission to Shell to explore for oil and gas in the Beaufort

(Anchorage Daily News 2008h). In order to focus on responding to the numerous lawsuits launched against it, Shell announced it would cancel its plans for drilling in 2009, and draw up a drilling plan for 2010 and 2011 (Anchorage Daily News 2009a).

Early indications looked positive for Shell in the spring of 2010. In April, the Obama

Administration clearly signaled its approval of drilling in the Alaska offshore region, and Shell had cleared regulatory hurdles from the EPA over its clean air standards (Bluemink 2010b;

Anchorage Daily News 2010b). By the end of the month, however, the Deepwater Horizon disaster in the Gulf of Mexico brought offshore exploration in Alaska to a grinding halt. In response to the Deepwater spill, the Obama administration announced a six-month moratorium on offshore drilling in the Gulf of Mexico, extending this action to include an administrative ban on offshore development in Alaska by announcing that the Department of the Interior would not consider applications to drill in the Arctic until 2011 (Jans 2010).

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Shell’s plans for exploration and drilling got a boost in 2011. In August of that year, Shell received conditional approval of its two-year Arctic program, allowing it to move ahead with its plan to drill four exploratory wells in the 2012 season (Anchorage Daily News 2011a). Full approval depended on several parallel regulatory processes, including air permits from the EPA, the approval of oil-response plans specific to each well, as well as plans for the protection of marine mammals (Anchorage Daily News 2011a). While Shell received its air pollution permits from the EPA just a month later, both the initial approval of the plans and the EPA permits were challenged by environmental and Alaska Native organizations (Anchorage Daily News 2011b;

Anchorage Daily News 2011c).

After the federal Bureau of Ocean Energy Management released its rewrite of the environmental impact statement in 2011, Shell received word that it could resume its operations in the Chukchi Sea. In February of 2012, the federal Department of the Interior announced its approval of Shell's Chukchi Sea exploration plan, on the condition that the company halt drilling

38 days prior to the formation of sea ice in the offshore area (Anchorage Daily News 2012). A month later, the federal government also announced approvals of Shell’s plans for drilling in the

Beaufort Sea. Alaska Native institutions (the Native Village of Point Hope and the Inupiat

Community of the Arctic Slope) and environmental groups quickly challenged both decisions, though by May of 2012, both lawsuits had been rejected by the 9th U.S. Circuit Court of Appeals, paving the way for exploration (Demer 2012a). With most of its approvals finalized, Shell moved ahead with its plan to drill three exploratory wells on its Burger prospect (Chukchi) and an additional two wells on the Sivilluq prospect (Beaufort).

However, the company soon faced several major operational setbacks. The first setback came in July of 2012, when the Noble Discoverer, the drilling rig bound for exploratory drilling

-274- in the Chukchi Sea dragged anchor amid high winds. Although the rig never fully grounded, the rig came within 175 yards of the shoreline. This was not the first issue facing the retrofitted rig.

Despite having spent over $30 million to bring the 29 year-old rig up to modern environmental standards, Shell had recently concluded that the rig would not be able to meet the emissions limits set by the EPA, and had asked regulators to issue a revised permit (Demer 2012b). The second major setback came only a few months later, in September of 2012, when a key component of Shell’s oil spill response system was damaged during a pre-deployment test in

Puget Sound. The dome of the oil containment barge, designed to block oil and natural gas in case of an underwater spill, was badly damaged when a faulty electrical connection caused the dome to descend rapidly. The water pressure “crushed the dome like a beer can” (Cockerham

2012). Finally, the third major setback came following a short, but successful drilling program in the Beaufort Sea. In late December of 2012, the Kulluk, a moveable offshore oil rig, ran aground after its tow-lines snapped during high winds. The grounding re-ignited criticisms that Shell was not yet ready to drill in the harsh Arctic environment (Anchorage Daily News 2013). The subsequent investigation into the grounding, combined with fines applied by the EPA for emissions violations, heightened the negative attention on Shell, prompting the company to halt its plans for drilling in 2013. Early 2014 dealt a final blow to Shell’s offshore hopes, as the 9th

Circuit Court of Appeals found in favour of coalition of Alaska Native and environmental groups challenging the 2008 Chukchi lease sale. In a split decision, the judicial panel agreed that the federal government’s environmental analysis was insufficient and requested a second rewrite of the environmental review (Rosen 2015); in response to that decision, Shell shelved its 2014 drilling plans, and essentially all offshore drilling exploration and development was abandoned.

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7.3.1 Media Analysis – The Changing Nature of the Debate

The media analysis covers seven and a half years of public debate, from January 2006 to

July 2014, with 268 newspaper articles coded. Through the thematic analysis, 910 references were coded in favour of the offshore drilling exploration and development, while 836 references were coded that raised concerns about development. Figure 7.5 (below) highlights the relative breakdown of arguments for and against offshore drilling in the Beaufort and Chukchi Seas over the seven-year period of public debate.

Figure 7.5: Proportion of Debate For/Against Offshore Exploration and Development [N=1746]

100%

80%

60%

40%

20% PERCENTARGUMENTATION 0% 2006 2007 2008 2009 2010 2011 2012 2013 2014 YEAR OF COVERAGE

Arguments in Favour of Development Arguments Against Development

The thematic analysis shows that the relative favourability of the project increased through to 2011, though a dip in support in 2010 reflects the concern stemming from a shift in the public discourse after the Deepwater Horizon disaster in the Gulf of Mexico. The disaster increased public scrutiny over the prospect of offshore drilling in Alaska and brought up the long-term implications still felt from the Exxon Valdez. With the shadow of the Valdez spill still hanging over the state, the risks of offshore drilling were felt much more acutely in Alaska than they were in the northern Northwest Territories. One of the biggest issues for Alaskans was the sparse infrastructure along its northern coast, and what that meant for industry’s capacity to

-276- respond quickly and effectively to spills (see Appendix B for a breakdown of coding). Despite significant infrastructure and Coast Guard resources on hand, the Deepwater Horizon spill proved nearly impossible to contain; by comparison, for offshore drilling in the Arctic, the nearest Coast Guard base was nearly 1,000 miles away. Other factors also had the potential to hamper cleanup efforts in the event of a spill. Icy waters combined with not-infrequent storms with hurricane-strength storm winds had the potential to make spills more likely, and also more difficult to effectively stop (Bluemink 2010c).

Despite the experience in the Gulf of Mexico, both the State of Alaska and the Obama

Administration favoured offshore drilling and pushed regulatory reviews forward in 2011.

Support for offshore drilling began to decline rapidly as drilling went from theory to reality.

Shell began operations in the Chukchi in 2012 and began aggressively advancing its plans for exploration in the Beaufort Sea. Several operational issues, including the Kulluk grounding, issues with its air permits, and concerns over its oil spill response plan dominated the media coverage, and continued to depress support for the project through to 2014.

7.3.2 Dynamics of Dissent in the North Slope Region

As in the case of the Red Dog Mine, the predominant voices in the public debate were not

Indigenous citizens and institutions. Only 36.4 percent of negatively coded arguments (N = 836) were attributed to Indigenous institutions or individuals.

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Table 7.2: Indigenous Citizens & Institutions – Arguments Against Offshore Drilling [N=304] Theme Citizens Leadership-Institutions Economic 1 7 Economic benefits will bypass the state - -

Economic benefits will bypass Alaska Natives 1 7 Environmental 39 77 Arctic environment harsh and dangerous 2 4 Arctic environment makes spill cleanup more difficult 12 15 Development will result in significant pollution 5 10 Development will affect vegetation and wildlife 15 38 Major offshore oil spill is likely / catastrophic 5 7 Governance 7 22 Health and safety issues with operation - - Regulation is inadequate - 3 Should be a moratorium on offshore development - 1 Risks need to be minimized-mitigated - 2 Spill response infrastructure is lacking 7 16 Process 6 39 Information on environment-wildlife insufficient 2 9 Lack of consultation-trust 2 13 Representational concerns (i.e. conflicts of interest) - - Screening process is inadequate 2 17 Social 41 49 Development will affect culture & subsistence 37 43 Development will affect health 4 6

Negative argumentation by Indigenous citizens and institutions was fairly consistent, with particular emphasis by both on environmental and social considerations. The two concerns highlighted most frequently are linked in their argumentation. On the environmental side,

Indigenous communities were concerned about the potential impacts of development on wildlife and vegetation. While this was often noted purely within the context of environmental sustainability, it is also linked to concerns over the preservation and sustainability of Indigenous cultures and traditions of subsistence hunting.

Meanwhile, despite the slow move of indigenous institutions in the North Slope and

Northwest Arctic towards more pro-development positions, their presence in the positive

-278- argumentation was negligible (only 25 of 901 positive arguments were coded to Indigenous institutions or individuals).124

Over the seven-and-a-half-year period of media coverage, a total of 621 conflicts were coded; of these, over 38 per cent (or 239) engaged Indigenous citizens and institutions. However, there is little in the way of noted conflicts within the Indigenous community. Only 14 coded conflicts were noted within the Indigenous population in the North Slope of Alaska, primarily manifesting themselves in disagreements between political leaders in the regional corporation, the regional tribal government (the Inupiat Community of the Arctic Slope), and the borough government:

Figure 7.6: Sites of Dissent – Within-Group Dissent in Offshore Drilling

North Slope

0 2 4 6 8 10 12

Institution-Institution Citizen-Institution Citizen-Citizen

This lack of within-group conflict appears to be a product of the source of the data rather than the realities on the ground.125 While the coding reflects the tone of public concern within the North

124 These results point to a potential problem with the data for understanding the dynamics of dissent within the region, as they paint a broadly homogenous picture of the viewpoints of the Alaska Native population. This homogeneity is largely borne out in the dynamics of dissent noted in the data. This difference may be attributable to the two reasons identified in the Red Dog Mine case: (1) stronger civil society presence in Alaska, larger relative voice of environmental and citizen groups that can overtake Indigenous voices in the public debate; (2) differences in the scope of the newspaper itself, as compared to News/North. 125 Two issues appear to affect the data from the Anchorage Daily News in the case of offshore drilling. The first issue appears to be related to the complexity of the issue, and the actors involved. In writing about conflict and litigation, the news media tended to refer to “Alaska Native organizations” involved in coalitions, however, it rarely clearly identified which organizations these were. Thus, there is a lack of clarity over whether the organizations are formal institutions (such as tribal governments) or non-governmental or citizen-based entities (such as REDOIL). The second issue that emerges relates to the audience of the newspaper, as the Anchorage Daily News is a statewide publication; as such, it may downplay the regional politics in favour of politics more relevant to the state as a whole.

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Slope and Northwest Arctic regions over offshore drilling, several within-group dynamics are not well captured in the coding. In order to illuminate some of these dynamics, the next section relies on secondary sources, including newspaper articles from the Arctic Sounder, a weekly newspaper servicing northwestern Alaska, and news releases from regional corporations.

As tribal governments, including the Native Village of Point Hope and the Inupiat

Community of the Arctic Slope, and Indigenous non-governmental entities, including the Alaska

Eskimo Whaling Commission and Resisting Environmental Destruction on Indigenous Lands

(REDOIL), advanced several lawsuits against development, other North Slope governance organizations clearly favoured development. Early indications of this divergence were made public in a Congressional sub-committee hearing in 2011. During his testimony, Richard Glenn, an executive with the Arctic Slope Regional Corporation, argued clearly in favour of development. He highlighted the important economic impacts that the oil and gas industry has had for the development of the North Slope communities. In his testimony he noted that the industry has been the mainstay of tax revenues for the northern borough, improving schools and supporting local infrastructure. “Without development in the Arctic,” Glenn warned of a world in which “Arctic Native Communities would not survive” (DeMarban 2011). A different kind of survival was also the major concern of Caroline Cannon, the President of the Native Village of

Point Hope, a community in the North Slope Borough and the Inupiat Community of the Arctic

Slope. In a prepared statement to the press, Ms. Cannon highlighted the potential environmental impacts that could come with a major offshore oil spill. In particular, she raised concern that an oil spill would contaminate wildlife and damage the subsistence lifestyles of the North Slope

Inupiat for generations, likening the implications to cultural genocide (DeMarban 2011).

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The regional corporation was not the only pro-development Indigenous organization in the region, as the North Slope Borough government slowly began to change its position on offshore drilling. In the early days after the 2005 Beaufort lease sales, the borough had been one of the most prominent voices against development, highlighting concerns over the impact of offshore development on the arctic environment, the capacity of industry to effectively respond to an oil spill, and the implications for subsistence hunting and the Inupiat culture. Despite these concerns, the North Slope Borough’s shifting position is evident by late 2009/early 2010. The first indication of this change was in the borough’s decision to sit out yet another lawsuit against

Shell and the Minerals Management Service. That lawsuit, filed by the Alaska Eskimo Whaling

Commission and the Inupiat Community of the Arctic Slope, asked the federal government to overturn drilling plans approved for the Beaufort and Chukchi seas (Donovan 2009). The North

Slope Borough opted against joining the suit, noting its preference to “negotiate [with Shell] rather than join the lawsuit” (Anchorage Daily News 2010a). When the Native Village of Point

Hope and REDOIL filed again suit against the Mineral Management Service (MMS)—the federal department in charge of lease sales—and Shell over the Chukchi leases in early 2010, the

North Slope Borough sat aside once more (Anchorage Daily News 2010a)

Despite the increased scrutiny over offshore drilling following the Deepwater Horizon, the North Slope Borough maintained its cautiously pro-development position. In October, following months of broad public debate over the risks of offshore drilling and heightened concerns over the potential scope of an Arctic environmental disaster in the event of a spill, the

North Slope Borough entered into a multi-year agreement with Shell to study the potential effects of offshore oil drilling, and incorporate the concerns of North Slope villages into Shell’s planning processes. Although the mayor of the North Slope remained hesitant over the potential

-281- implications of offshore for subsistence hunting—including concerns over how seismic testing would affect the migratory habits of bowhead whales—his public comments were optimistic, noting that the plans Shell was putting forward came across as “more manageable than what the company had planned several years ago” (Anchorage Daily News 2010c). A few months later, the borough would publicly support Shell’s plan to drill an exploratory well in Camden Bay in the Beaufort Sea (Bluemink 2011).

As Shell continued to push forward on its planned offshore exploration, the tensions between North Slope institutions escalated. In 2014, in a series of op-eds in the Arctic

Sounder,126 leaders from several of the Indigenous organizations tabled their disagreements. First up was Richard Glenn, Executive Vice President of Lands and Resources for the Arctic Slope

Regional Corporation (ARSC), who went after tribal organizations within the North Slope region. His attack focused most squarely on the Inupiat Community of the Arctic Slope (ICAS) that, together with the Native Village of Point Hope and several environmental NGOs (e-NGOs), had sued the federal government in an attempt to halt development. In an op-ed he challenged the authority of tribal leadership, accusing them of closing the door on the future of Arctic communities: “Lawsuits by the e-NGO's and organizations like ICAS freeze the government into inaction. Projects stop. Jobs go away. The uncertainty created by the lawsuits threatens our local corporations. It removes job opportunities for our shareholders. Future North Slope Borough revenue is removed” (Glenn 2014). He also attacked ICAS over what he saw as the hypocrisy of its actions, on the one hand partnering with NGOs to stop offshore development, while on the other, asking for financial support from the Arctic Slope Regional Corporation, whose economic

126 I did not rely on the Arctic Sounder as my primary source of data for several reasons. While I could access online records of the paper after 2011, I was unable to do reliably do so for earlier dates, which complicated its use across both the Red Dog Mine and offshore drilling cases. It also curtailed my ability to develop a temporally comprehensive dataset for the offshore drilling cases, which began in the mid-2000s.

-282- lifeblood is revenues from the oil and gas industry (Glenn 2014). While ICAS’s letter responding to Glenn’s attacks remained fairly benign, Robert Thompson, a representative from REDOIL was much more direct in his response. He suggested that while ARSC should be concerned with the health and wellbeing of their shareholders, in fact the “corporation’s only drive is the bottom line, and they promote a ‘Profit at all Cost’ [and that] unfortunately the cost may be the inherent subsistence rights of the people” (Thompson 2014). He furthermore suggested that the position taken by the regional corporation was illegitimate, relative to the position of the tribal entity, writing “ICAS is a federally recognized regional Tribe. ARSC is a product of the tribe. ARSC should take the actions of ICAS as direction they should follow” (Thompson 2014).

Divisions continued to be reinforced through different organizational actions in dealing with Shell. As REDOIL and ICAS pursued court actions to stall development, six of the local community corporations in the North Slope region and the Arctic Slope Regional Corporation announced that they had reached an agreement for a joint venture with Shell. The venture, named

Arctic Inupiat Offshore, gave the Native corporations the option to buy into all of Shell’s 275 leases in the Chukchi Sea and assume an “overriding royalty interest” (Rosen 2014). One of the community corporations involved in the joint venture, the Tikigaq Corporation, is the community corporation of the community of Point Hope; the tribal government of this community had been one of the most active opponents of offshore drilling. However, the institutional disagreement between the community corporation and the local tribal government was ultimately short-lived.

In early 2015, the Native Village of Point Hope opted out of its seven-year lawsuit against

Mineral Management Services challenging development in the Chukchi Sea. The news release on the council’s decision to drop its lawsuit cited new federal safeguards on Arctic drilling that increased the sense of security on offshore development. Also at play, though, was the potential

-283- for the village to reap economic benefits. Shareholders in the community corporation now had an economic interest in development, while the tribal government saw potential for revenue sharing

(Rosen 2015).

Unlike political dissent in the Northwest Territories, and particularly when compared to the case of Beaufort offshore drilling, contestation against the state (/majority nation) dominated the case of offshore development in Alaska.

Figure 7.7: Sites of Dissent – Minority Nation vs. The State (/Majority Nation)

0 10 20 30 40 50 60 70 80 90

Federal Govt

Federal Regulatory Agencies

State Regulatory Agencies Citizen Institutional State Government

Advocacy Organizations

Industry

Conflicts were referred to a total 212 times, with conflict with the federal government and industry predominating. The conflicts with the federal government were largely focused on issues of the failure of government to appropriately regulate or screen the proposed developments. What is clear from these patterns of contestation, however, is the impact that the relative lack of Indigenous access to decision-making processes has on the patterns of conflict.

Unlike the case of the Inuvialuit, who are engaged in developing the regulatory framework on offshore development, Indigenous nations in Alaska remain on the outside of the decision making processes, with few mechanisms by which to influence outcomes. While Indigenous institutions can make submissions to regulatory processes, and co-management organizations can

-284- engage in proactive efforts to engage with industry actors (through mechanisms like conflict- avoidance agreements), these venues rarely offer concrete outcomes. In many cases, litigation is the only option to voice their concerns and have an impact on the process.

There was also considerable fragmentation with respect to which institutions took charge when challenging the state/majority nation. Within the North Slope region, at least five separate organizations engaged in litigation against the federal government and Shell: the North Slope

Borough, two tribal governments (the Inupiat Community of the Arctic Slope and the Native

Village of Point Hope), the Alaska Eskimo Whaling Commission, and the Indigenous environmental organization, REDOIL. Different issues garnered differential responses by these organizations, which occasionally collaborated on lawsuits. Nonetheless, there appears to be no coherent strategy on the part of these institutions and citizens groups to coordinate their responses to development (though the two tribal governments and REDOIL were the most prolific in their contestation).

7.4 Discussion

As can be seen in both of the Red Dog Mine and Beaufort/Chukchi offshore drilling cases, the finalization of a modern land claim agreement in Alaska has had important implications for regional governance and for the politics of contestation in response to resource development. Three dynamics emerge from the media analysis and will be explored in greater depth below: (1) the complex relationship between Alaska Native nations and environmentalists;

(2) the implications of a lack of shared-rule institutions in regulatory processes; and (3) the influence of institutional fragmentation on the dynamics of political dissent.

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7.4.1 Alaska Natives and the Environmental Movement – A Complex Relationship

The relationship between Indigenous peoples and environmental groups in the north is highly fraught; in the case of the Northwest Territories, we saw several examples of open hostility toward ‘southern’ environmental groups. In Alaska, the relationship is arguably more complex, as issue areas and positions often align and overlap (resulting in partnerships between

Indigenous nations and environmentalists). Environmental groups often have the financial and legal resources to launch prolonged litigation, a feature that is particularly important for smaller organizations (such as small local tribal governments) that may not have the financial foundation to sustain such action. As well, these environmental organizations often have the statewide or national profile to elevate a local issue into the public consciousness.

Despite this somewhat cozier relationship, Indigenous organizations and environmental groups can also come into conflict with one another as positions diverge, or actions are taken that do not fully account for Indigenous interests. One clear example of this form of conflict, in the case of offshore drilling, is the parallel actions taken to halt exploration and development. While environmental groups and Indigenous governance organizations worked together to halt development through litigation, environmental groups took on a separate cause as a means to

(potentially) permanently curtail offshore exploration. As part of the offshore drilling program, the U.S. federal government had extended certain legal protections to oil companies operating offshore. In 2008, the United States Fish and Wildlife Service provided legal cover for the seven oil companies operating in the Chukchi Sea, in the event that they accidentally harmed “small numbers” of polar bears or Pacific walruses during exploration and drilling activities (Anchorage

Daily News 2008g). As part of the regulatory framework, industry actors would be required to

-286- report all sightings, thus giving the agency much-needed data on population statistics within the region, helping to balance off the risks to wildlife by filling a gap in the scientific data.

Unsurprisingly, environmentalists took major issue with this part of the framework and adopted an aggressive campaign to protect the polar bear population. Environmentalists actively lobbied the federal government to designate the polar bear as an endangered species, under the federal Endangered Species Act (ESA). In late 2008, in a win for the environmentalists, the

Secretary of the Interior under the Bush administration declared polar bears a ‘threatened species,’ an act that environmentalists hoped would provide them with greater leverage in stalling exploration and development offshore. While the listing was met with concern from state and industry officials, the Secretary of the Interior attempted to downplay the potential effects, noting that the designation was not expected to interfere with offshore drilling plans, as offshore drilling was already regulated by the much more restrictive Marine Mammal Protection Act

(Anchorage Daily News 2008d). Despite this framework, less than a month later, two environmental groups gave the federal government formal notice over their intent to sue to protect polar bears from petroleum exploration and drilling (Anchorage Daily News 2008f). In

2010, the Obama administration moved to better protect the polar bear population, designating

187,000 square miles of the Alaska on- and offshore critical habitat for the polar bear; nearly ninety-five percent of the habitat identified by the Department of the Interior is sea ice in the

Beaufort and Chukchi Seas (Anchorage Daily News 2010d). The identification and designation of critical habitat was yet another major win for environmentalists keen to stop offshore oil development.

The push by environmentalists, and the subsequent decisions by the federal government to protect the polar bear, were met with dismay by Alaska native leaders and institutions from

-287- across the North Slope and Western Arctic. Although the designation itself was roundly rejected, the reasoning differed across the types of institution. The Mayor of the North Slope Borough,

Edward Itta, opposed the designation and the efforts by environmentalists, citing concerns that the designation would interfere with Inupiat subsistence hunting and fishing (Anchorage Daily

News 2008d). Similarly, the Inupiat Community of the Arctic Slope and the Alaska Eskimo

Whaling Commission viewed the polar bear designation as highly problematic from both economic and subsistence perspectives, with Inupiat leaders and citizens alike concerned that the designation would interfere with their ability to hunt in offshore waters.

The designation of critical habitat, meanwhile, raised several other issues for Alaska

Native groups. While generally wary of offshore development, Alaska Native organizations worried about how the critical habitat would affect onshore oil production in the North Slope, a major source of revenue for the regional Alaska Native corporations (through leasing and taxation in the North Slope, and through contracting for NANA). In response to the federal government’s critical habitat designation in 2010, the North Slope Borough, Arctic Slope

Regional Corporation, and NANA Regional Corporation led a coalition of Inupiat institutions in a lawsuit against the federal government (Hardt 2011). In line with the economic interests of this particular concern, the Native organizations involved in the lawsuit were primarily, though not exclusively, corporate institutions of governance.127

127 The coalition included four regional corporations—the Arctic Slope Regional Corporation, NANA Regional Corporation, Calista Corporation, and the Bering Straits Native Corporation; two regional governments—the Northwest Arctic Borough (public), the Inupiat Community of the Arctic Slope (Indigenous); and six community corporations from the North Slope region—the Kaktovik Inupiat Corporation, Kuukpik Corporation, Ukpeagvik Inupiat Corporation, Olgoonik Corporation, Inc., Cully Corporation, and Tikigaq Corporation.

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7.4.2 Political Dynamics in the Absence of Shared-Ruled Institutions

Unlike the Northwest Territories, Alaska has few formal mechanisms to engage

Indigenous nations in regulatory processes. While all projects are subject to consultation processes, offering Indigenous nations the opportunity to inform project development alongside the broader public, there are few cases in which Indigenous nations have a direct hand in reviewing projects, selecting representatives to review projects, or setting out the terms and conditions of a review process. Examples of shared rule institutions, rather, tend to be constrained to processes of co-management over wildlife resources. One of the longest-standing examples of this type of management regime is the Alaska Eskimo Whaling Commission

(AEWC). The AEWC has representation from eleven whaling villages along the Alaska coast, bringing together Inupiat and Yupik whalers from across three of the ANCSA regions (the North

Slope, NANA, and the Bering Straits). The AEWC and the federal National Oceanic and

Atmospheric Administration (NOAA) have jointly managed the bowhead whale hunt in Alaska since 1981. Other co-management organizations include the Eskimo Walrus Commission

(created by Kawerak, Inc., the regional non-profit association of the Bering Straits region, and with a cooperative management agreement with the U.S. Fish and Wildlife Service), and the

Alaska Migratory Bird Co-Management Council. While several of these organizations conduct primary research that informs resource development, the decision-making processes on nonrenewable resource development largely do not directly engage representation from Indigenous nations.

The limitations of such institutions are clear in the case of offshore drilling, as the Alaska

Eskimo Whaling Commission was one of the most prolific litigants against development. As seen in Annex III (Table III-B3), the AEWC was involved in no fewer than seven lawsuits or

-289- appeals to the Environmental Appeals Board with the EPA. Thus, while the AEWC has a formal relationship with the federal government, it has no sustained mechanism by which to affect decisions of federal regulators.

The implications of this lack of access to the regulatory process can be seen in the type of argumentation being used by Indigenous nations in both of the cases of resource development.

One of the most prominent arguments against development in the case of Alaska was concern over the implications of development for Inupiat culture and subsistence practices. The argument was coded 62 times in the case of the Red Dog Mine, and 110 times in the case of offshore exploration and drilling, suggesting that resource development and cultural preservation are held as opposing principles. Subsistence hunting and the preservation of the Inupiat whaling culture are intrinsically tied to questions of Indigenous nationhood, as the minority nation is itself defined by these practices. It is, arguably, ever more important to preserve these elements of national identity when institutions of governance are perceived as failing to do so. While

Indigenous leadership has taken steps to build Indigenous national identities into the institutions of North Slope and Northwest Arctic Boroughs, and into the NANA and Arctic Slope Regional

Corporations, it appears that these efforts have not necessarily borne a sense of security over the future of the Inupiat minority nation in Alaska.

Despite remaining on the outside of federal regulatory processes, the relative political power of Indigenous nations in northern Alaska has opened some opportunities for the creation of alternative mechanisms to include Indigenous representation in decision making processes. In the absence of shared-rule institutions embedded in the federal architecture, Indigenous nations have inserted themselves into the policy process. In both cases of resource development, opportunities for Indigenous oversight or participation in decision-making were created in

-290- agreements with industry proponents. In the case of the Red Dog Mine, oversight of the development took on two forms: (1) the creation of an elders’ council to inform the set-up of the mine, and (2) a council composed of local residents to give voice to local concerns about the operation of the mine, and any potential impacts on the subsistence practices of villagers. Despite being lauded as a significant move forward in Indigenous oversight of mining practices, the media debate from 2000-2010 suggests that this forum suffers from a general lack of legitimacy, in large part due to its position relative to the regional corporation which maintained a vested interest in the operation of the mining project. It probably also did not help that the President of the NANA Development Corporation came out publicly against the position of local villagers and the local tribal government. In the case of offshore drilling, overtures by industry to include

Indigenous institutions in decision-making processes helped to ease some of the tensions. Shell’s announcement of $2 million in funding to coordinate research efforts on wildlife populations, to be managed by the North Slope Borough, was one of the factors that brought borough leadership onside with development.

As an element of their self-rule authority, Indigenous nations have also been able to assert some jurisdictional authority. Any development that occurs on Indigenous-owned land

(corporate land) is subject to Indigenous authority, a fact that has allowed Indigenous nations to push for important concessions by industry. However, the regulatory process remains out of the hands of Indigenous nations (as seen in the case of the Red Dog Mine). Additionally, for

Indigenous nations that control regional municipal governments, including the North Slope

Borough and the Northwest Arctic Borough, development occurring within the boundaries of a borough government is subject to the land use planning processes and consultation processes set

-291- out by those governments. Nonetheless, in the absence of shared-rule institutions, traditional sites of conflict remain dominant.

7.4.3 Institutional Fragmentation: Implications for Within-Group Dissent

Though the lack of shared rule institutions in the United States has kept the traditional site of contestation highly salient, the two cases also highlight the influence of institutional design for structuring within-group dissent. These dynamics are particularly clear in the case of the Red Dog Mine, where the NANA Regional Corporation undertook to expand the mining operation. In addition to NANA’s strong support for the development, the regional borough government also had a vested interest in the continued productivity of the mine, as negotiated payments (through a ‘payment in lieu of tax’ agreement with Teck Cominco) constitute the major source of revenue for the regional government. Given the preferences of the regional leadership and institutions, local citizens who opposed the mine development looked for alternative venues through which to advance their opposition. In the case of Kivalina, the community closest to the mine, several local institutions could be utilized during the course of contestation: the local tribal government, the public municipal government, and a local planning commission (tasked with reviewing options to relocate the community due to coastal erosion).

In the case of offshore drilling, by comparison, the contestation is primarily horizontal in nature, with conflict generally occurring between different regional organizations all aiming to best represent the North Slope Inupiat population. Two main non-governmental entities (the

Alaska Eskimo Whaling Commission and REDOIL) brought together the interests of Inupiat citizens from across Alaska, and not necessarily those confined to a single region. In the case of the AEWC, its membership comes primarily from whaling communities along the North Slope

-292- and Northwest Arctic coasts (including three of Alaska’s ANCSA regions). By comparison,

REDOIL, an Indigenous environmental group, describes its membership as a movement of

Alaska Natives from the Inupiat, Yupik, Aleut, Tlingit, Eyak, Gwich’in and Denaiana

Athabascan Tribes. Formal institutions of government, including the Arctic Slope Regional

Corporation, the North Slope Borough, and the Inupiat Community of the Arctic Slope, competed against one another in their efforts to represent the same general population of North

Slope Inupiat. Each one of these regional organizations represents approximately the same

Inupiat population in the North Slope, and all (at one time or another) claimed the role of regional representative of northern Inupiat interests.

7.5 Conclusion

Within Alaska, the implementation of ANCSA and the emergence of other institutions of

Indigenous governance, including both public (municipal and borough) and tribal governments

(be they local or regional), have fragmented the representation of Indigenous nations within the

United States federal system. Despite the widespread institutionalization of Indigenous organizations, no single regional or local organization seems to operate as part of the federal structure. This has meant that, unlike in the case of the NWT, the finalization of a modern land claim agreement has not shifted dissent away from the traditional site of conflict (between

Indigenous-nations and the state). The lack of public institutions to ensure Indigenous involvement in regulatory decisions makes resource politics in Alaska more fraught, and undermines the place of Indigenous institutions and the multinational model of federalism. While

Indigenous nations have been able to solidify their substantial political voice through important self-rule institutions, there has been no attempt to integrate Indigenous voices into robust,

-293- shared-rule institutions. This omission likely has a double impact that amplifies conflict at the traditional site. On the one hand, Indigenous nations have several strong self-rule institutions, each with financial resources and political heft that Indigenous citizens attempt to leverage to voice political dissent. On the other hand, Indigenous institutions themselves may be competing against one another to assert themselves as the most effective advocate for their nation, thus increasing the use of the traditional site of conflict to assert their political power.

As in the case of the NWT, the process of federalization moved policy authority and decision making downwards to newly created governance organizations, and, depending on the nature of the resource development project, contestation did emerge within nations at these new sites of authority. In the case of the Red Dog Mine expansion, which the NANA Regional

Corporation actively advanced, issues of institutional legitimacy were raised, and the project was marked by considerable within-group contestation. Despite attempts by the NANA leadership to create processes that integrated the environmental concerns of the closest communities, many viewed the regional corporation as unable to effectively respond to citizen concerns, given its vested interest in development. Given the fragmented model of governance in Northwest Alaska, concerned Indigenous citizens were able to leverage alternative governance institutions, including the local tribal government and a local planning commission, to attempt to block development.

The dynamics illustrated in this chapter also point to some of the ways in which institutional design may work to heighten within-group contestation. Based on the case analysis, relatively greater institutional fragmentation and weak linkages between institutions and national identity appear to weaken institutional legitimacy and exacerbate within-group dissent. This outcome has important implications for evaluating the ‘success’ of institutional creation for

-294- meeting the goals of a multinational federal system. In the absence of robust shared-rule institutions that create clear avenues for minority nations to voice their perspective and influence majority-nation decision making, institutional legitimacy suffers, and the traditional site of contestation remains relatively intact. In the next, and final chapter, I will review the findings, situate these cases in the theoretical framework, and discuss opportunities for future research.

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Chapter 8 – Conclusion

Since the finalization of modern land claim agreements in Alaska and the northern

Canadian territories, the political dynamics of the North have shifted dramatically. The creation of new institutions of Indigenous governance has fundamentally reimagined politics and federalism in the North. Despite the differences in the contemporary models of governance, both

Alaska and the Northwest Territories stand apart, politically and institutionally, from other regions in North America. The political dynamics internal to each region offer important lessons for the ways in which institutions can meet (or fail to meet) minority national goals for political representation and self-governance, and state goals for reducing conflict with minority nations.

In this chapter, I will briefly review the main argument of the dissertation—providing a brief cross-case comparison between the two primary cases—before discussing some of the limitations of the research, and pointing to avenues for future research.

8.1 The Argument

Why have the governance models characterizing the Indigenous-state relationship in the

United States and Canadian Norths diverged so significantly from one another, despite a common shift in the dominant policy paradigm? How do differences in institutional design shape the political dynamics of these regions in the contemporary political context?

In the first half of the dissertation, I explored this question through theories of multinational federalism and institutional change in federal systems. Chapter Two began this exploration with a literature review that laid out the theoretical foundation and provided potential explanations for the policy shift towards the recognition of Indigenous land claims. Based on the

-296- literature, I identified three contingent factors that enabled the United States and Canadian federal governments to move toward a new Indigenous-state relationship: (1) an ideational shift that increasingly recognized Indigenous peoples as rights-holding communities with legitimate claims; (2) clear authority on the part of the federal government to institutionalize a new policy paradigm; and (3) shifting power dynamics that provided Indigenous minority nations with the political leverage needed to push the state (/majority nation) into action. However, Chapter Two also highlights that while relations have improved (somewhat) between minority nations and the federal government, the full realization of a multinational model for Indigenous minority nations has been undermined by two important factors. Firstly, the federal political system contains elements that have worked against the full realization of a paradigm shift to self-determination.

In particular, state, provincial and territorial policies can work at cross-purposes with federal institutions and undermine federal efforts. Secondly, the full realization of the shift at the federal level has been undermined by institutional stickiness. This has allowed several policies of previously dominant paradigms to persist (including the Indian Act in Canada) and to continue to shape the Indigenous-state relationship.

In Chapter Three, I built on these theoretical foundations to explore the specific mix of conditions that led both countries to shift away from the dominant policy paradigm of assimilation and towards a paradigm of Indigenous self-determination based on policies of recognition. In this chapter I highlighted three intersecting conditions that enabled the breakdown of the dominant policy paradigm: (1) the mobilization of a sustained protest movement; (2) legal uncertainty that challenged the stability of the status quo; and (3) the ability of the single authority to push through policy change.

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While the concentration of policy authority in the federal government enabled the rapid shift in the paradigm, the institutionalization of the paradigm has been uneven across the two jurisdictions. The states’ use of a similar policy instrument (modern land claim agreements) solidified the economic components of the policy paradigm of Indigenous self-determination in both Alaska and the northern regions of Canada. However, as Indigenous political leaders attempted to enlarge the paradigm to include components of political self-determination, there has been considerable divergence in the subsequent institutionalization. In Chapter Four, I explored this institutional divergence across the two jurisdictions, and argued that policy tools and venues of decision making have important long-term implications for the manner by which minority nations seek to enlarge the paradigm. By comparing across two cases marked by similar policy goals (Indigenous self-determination) implemented with broadly similar policy instruments (modern land claim agreements), I illustrated how the flexibility of a policy tool can have important, long-term, effects on institutional design and on the ability of political actors to advance their policy goals.

The second half of the dissertation explores the relative ‘success’ of the two multinational models created with the shift toward the paradigm of Indigenous self-determination. The literature on multinational federalism suggests that using the institutional levers of federal political systems to empower minority nations within the federal architecture will reduce conflicts between minority nations and the state (/majority nation). The paradigm transition towards Indigenous self-determination, and the use of modern land claim agreements to shift economic and political powers into new institutions of Indigenous governance, clearly reflects attempts by the United States and Canadian federal governments to do just that. In Chapter Five I highlighted how, during the process of institutionalization, political concerns in both the United

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States and Canada raised a similar set of issues. Concerns focused on the institutional move towards ethnic fractionalization, and the creation of institutions that were (or had the potential to become) incongruent with the dominant institutional framework. Both of these factors were positioned as potentially contributing to increased political tensions throughout the northern regions. To contextualize the ‘success’ of the resultant political systems, I developed an analytical framework for exploring the relationship between institutional design, national group identity, and patterns of contestation.

In Chapters Six and Seven, I tracked the patters of political contestation and dissent that emerged across several cases of resource development. In Chapter Six, I investigated two separate projects: the Mackenzie Gas Project in the Northwest Territories and offshore oil exploration in the Beaufort Sea in the Inuvialuit Settlement Region. In Chapter Seven, I similarly investigated two separate projects: the Red Dog Mine development in the Northwest Arctic region, and offshore oil exploration in the Chukchi and Beaufort Seas in Alaska, affecting the

Northwest and North Slope regions. The results of the media analysis across the two jurisdictions highlight the importance of institutional design for shaping the patterns of political contestation among national minority populations.

In exploring questions into how institutions shape the nature of political dissent, my dissertation research gets to a more fundamental issue regarding the capacity of federal political systems to successfully incorporate minority national communities. The case analysis confirms that political contestation against resource development, which was a lightning rod for conflict between Indigenous nations and the state in the 1960s and 1970s, has not disappeared. However, it has changed form. Where modern land claim agreements have been finalized, and new sites of

-299- authority have emerged through institutional creation, these new sites of decision making absorb a considerable amount of the political dissent that might otherwise be aimed at state actors.

While the practice of authority creates a new venue for political dissent, institutional creation to address the political goals of minority nations is not simply a question of shifting sites of contestation away from the state and toward the minority nation. The degree of dissent and the patterns that emerge depend on nuanced differences in the institutional design. As I have explored here, there has been considerable divergence with respect to the ways in which very similar policy paradigms have been institutionalized. Compared to their southern counterparts in the United States, Indigenous nations in Alaska have been undermined through the creation of a patchwork of governance institutions. While the collectivity of institutions may result in a high degree of governing autonomy, the governance model lacks coherence and the degree to which

Indigenous nations have been integrated into shared-rule regimes is limited.

The implications of this fragmentation are considerable with respect to the ‘success’ of the new institutions of governance to modulate the traditional sites of conflict between minority nation and the state. In particular, the lack of shared-rule institutions has kept Indigenous voices outside important regulatory venues, relegated to interest-group status in decision making processes on major projects. In the cases of both the Red Dog Mine and the Beaufort/Chukchi

Offshore Drilling, state and federal regulatory agencies (respectively) bore the brunt of

Indigenous contestation. Failure to effectively integrate Indigenous nations into these decision- making processes affected both projects. The cases of the Mackenzie Gas Project and the

Beaufort Offshore Drilling in the Northwest Territories confirm this finding, illuminating the importance of shared rule institutions for creating legitimacy in regulatory processes and dampening that traditional site of dissent between the minority nation and the state.

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Institutional design also has important implications for the ways in which the new institutions of self-rule structure dissent and contestation. The two cases in the Northwest

Territories suggest that institutional consolidation, on the part of the Inuvialuit, may have played a role in dampening within-group dissent. In the absence of competing regional representation, the Inuvialuit Regional Corporation appears to play an important role in both the economic and political life of the region, with mechanisms by which local organizations (community corporations and hunters and trappers committees) feed into the regional governance models.

This trend is particularly pronounced when comparing across regions with more fragmented governance structures, including the Dehcho First Nations in the Northwest Territories (in the case of the Mackenzie Gas Project), and the NANA and North Slope regions of Alaska.

Whereas institutional fragmentation played an important role in the dynamics of dissent in Alaska, institutional identity was much more salient in the case of Canada. The institutionalization of Indigenous self-determination in Canada has been much more closely tied to Indigenous national identities, with modern treaties embedding ‘small regional groups’ or small Indigenous nations in institutional development. This creation of more clearly defined in- groups and out-groups, combined with the creation (or maintenance) of ‘uneven’ political or economic ground through the terms of modern land claims—including relative resource endowments, access to political decision-making processes, and potential economic returns— resulted in considerable between-group contestation. Unlike in Alaska, where regional endowments are smoothed through sharing mechanisms and all Alaska Indigenous nations are treated as interest groups, in the Canadian case, differences in economic fairness and procedural fairness exacerbated tensions between Indigenous nations.

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8.2 Limitations of the Inquiry

This dissertation has at least three limitations that influence the scope of the research and the reach of the theoretical and empirical lessons. A first limitation is that the dissertation is only a beginning in uncovering differences in institutional design in contemporary models of

Indigenous governance. Not only is there considerable variation within the North—with respect to the political and economic goals of different Indigenous nations, as well as in the institutions designed and utilized to meet these goals—that variation is compounded when we step outside of the framework of modern land claim agreements to include Indigenous nations governed by historic treaties in the United States and Canada, and governed by the Indian Act in Canada. Not only is there variation in governance models, there are fundamental differences in the nature of the Indigenous-state relationship.

A second limitation is that the comparison between Alaska and the Northwest Territories, might, in some respects, be inappropriate. Whereas the institutional structure of Alaska has remained relatively static since the mid-1990s, the Northwest Territories continues to undergo considerable institutional change. Canada’s changing policy framework, and the slow process of negotiation, has meant that many Indigenous nations in the Northwest Territories have yet to fully realize the institutional promise of federalism. This delay has some important implications for the cross-national comparison, as the better comparison might actually be between the

Northwest Territories of 2018 and Alaska of the early 1990s. Based on media coverage from the

1980s and 1990s, several of the dynamics at play in the NWT echo the Alaska experience. In particular, in the decade or two following the implementation of ANCSA, there appears to have been considerable between-group contestation as groups tested out the boundaries of their new institutions. Two examples of this type of conflict in northern Alaska were over questions of the

-302- unequal distribution of resource endowments. In the first case, conflicts emerged over the distribution of resource revenues between regions (in which resource-rich regions, like the North

Slope, attempted to disqualify certain revenues from the sharing model). In the second case, boundary disputes emerged as the North Slope Borough aimed to include the Red Dog Mine lands within its jurisdiction (thereby maintaining its ability to tax the land), rather than give up that land to the newly created Northwest Arctic Borough.

A third limitation in the design is in the execution of the data collection and analysis for political contestation. Data based on media reports can be biased based on the source material and the relative weight given to issues and/or voices. Some of these limitations were apparent in the case of the Beaufort and Chukchi offshore drilling in the case of Alaska, as it became clear during the coding that northern (North Slope and Northwest Arctic) voices were not being profiled in the paper, and coverage tended to favour the politics coming out of Anchorage.

Where possible, I supplemented the coverage using alternative media sources to ensure the comprehensiveness of the case analysis.

8.3 Implications of the Research

The relevance of this dissertation is threefold. First, it contributes to existing debates on federalism as a means of political management of minority nations. Second, it concretely places both United States and Canadian forms of Indigenous governance within the multinational federal framework. It explains the development of Indigenous governance models, and examines how different models affect the conflict dynamics in contemporary federal systems. Third, the research holds several potential practical applications for governments seeking to enhance the multinational model.

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The implications of this research are arguably quite far-reaching, from both theoretical and practical perspectives. My research builds on the literature in multinational federalism to theorize the ways in which the institutions of the multinational federation structure the politics of contestation. The normative literature on the promise of federal systems posits that multinational federal institutions can address the conflict between minority nations and the state (/majority nation). By creating new institutions of self-rule, the federal system shifts sites of authority to the internal minority nation. Meanwhile, by creating new institutions of shared-rule, the federal system builds greater legitimacy into decision making. While we would expect conflict between the minority nation and the state to diminish following institutionalization, there has been little in the way of theory building with respect to the dynamics of dissent under the new institutional framework.128 My research builds a novel framework to analyze these dynamics.

In studies of federal political systems, Indigenous nations are often overlooked as candidates for the multinational model of federalism. Although frequently left out this conceptualization, this dissertation nonetheless shows that the United States and Canadian federal systems have provided the governance space for Indigenous nations through the creation of novel institutions of self- and shared- rule, the key features of the multinational model.

However, the degree to which this institutional move characterizes the broader Indigenous-state relationship in each country is limited: the institutions of Indigenous governance in the north are remarkably different from those in the Lower 48 and southern Canadian provinces, highlighting the long-term implications of political and institutional legacies.

From a broad comparative perspective, the main contribution of the dissertation is found in building bridges between theories of multinational federalism and processes of institutional

128 Schertzer and Woods (2011), and Schertzer (2016) are notable exceptions.

-304- change as the framework for understanding new political dynamics. This dissertation is the first attempt that I am aware of to link the institutional design of Indigenous governance models to the structure of political dynamics that emerge following institutional design and implementation.

Moreover, my research emphasizes that these institutions have an important political function, above and beyond the administrative role assigned to them in the framework of multilevel governance. My dissertation research highlights that Indigenous institutions have an important representative function within the United States and Canadian federal systems. In each case, the institutions of modern land claim agreements and Indigenous governance/government have reshaped political identities and interests, and structure the operation of politics in the north.

My findings challenge some of the key assumptions found in the literature on multinationalism by highlighting the capacity of institutions to break apart national identities and constitute new non-national identities. In the case of Alaska, the institutional development was disaggregated from Indigenous national identity, with Alaska Natives reconstituted as

‘shareholders’ of new regional corporate entities. In some cases, this institutional development pulled together several distinct Alaska Native nations under these new institutional umbrellas (as in the Bering Straits region, where three Indigenous groups were brought together). In other cases, institutional development divided Indigenous groups, subsequently shaping new identities and influencing corresponding priorities and preferences. In the Northwest Territories, by comparison, institutional creation was much more closely tied to discrete Indigenous identities.

This linkage appears to have acted to reinforce differences between groups, and in particular, in relation to the differences between the nature of the Indigenous-state relationship as enshrined through the modern land claim agreements.

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From a practical perspective, this research offers a starting point for understanding how institutional design decisions shape the political opportunity structure for dissent against resource development. In both the United States and Canadian cases, the decision to opt for modern land claim agreements (which conferred collective land ownership) with Indigenous nations has appeared to make resource development projects more favourable to those groups with finalized claims, as Indigenous nations are better able to capture the economic rents of development.

However, this is too simplistic a takeaway, as institutional design clearly influences both the legitimacy of the institutions to act in the broader interests of the group, and the opportunity structure for dissent and contestation. These findings matter because the project of reconciling with Indigenous nations is nowhere near complete. Both Canada and the United States are engaged (to varying degrees) in addressing the political and institutional goals of internal minority nations. This is particularly evident in the Northwest Territories, where several land claims—including the Dehcho and Akaitcho claims—are still under negotiation. Also under negotiation are regional self-government agreements with the Inuvialuit and Gwich’in, and community self-government negotiations in the Sahtu. While it is unlikely that the outcomes of this research will change the direction of these negotiations, the framework can help us understand what the finalization of these agreements will mean for political dynamics within the territory.

This framework could assist policymakers and political leaders in thinking through the potential implications of increased institutional fragmentation among Indigenous nations in

Canada. Both the Inuvialuit and Gwich’in are moving ahead with separate self-government agreements, and will not be creating a single regional public government (which was the preferred approach into the early 2000s). For the Inuvialuit, for example, the creation of a new,

-306- culturally bounded government that is institutionally separate from the regional corporation will create another venue for consolidating the interests of Inuvialuit beneficiaries. As we have seen in the case of Alaska, while the populations overlap or are the same, the concerns/interests of the citizen may be separate from the concerns/interests of the beneficiary, which may then in turn affect the actions of institutions. Based on interviews with leaders in the Inuvialuit Region, the negotiating team envisions a regional corporation that will continue to operate in its economic mandate, and that will be financially separate from the new Indigenous government (such that none of the economic resources from the land claim will be claimed by the regional government). Moreover, the corporation intends to shift the public-facing roles that it has taken up over time, including social programming, over to the new institutions of government and thus drawing a clearer line between the economic role of the corporation and the social/public role of the new government. This design has the potential to further disaggregate the interests of the two organizations within the region. However, if the government has a mandate to tax within its region (as the borough governments do in Alaska), it may nonetheless remain pro-development by virtue of wanting to maintain an economic base for the provision of public services.

The potential for fragmentation in the Inuvialuit and Gwich’in regions, however, remains relatively low in comparison to some of the other models under negotiation in the Northwest

Territories. The Sahtu region of the Northwest Territories has the greatest potential to become institutionally fragmented. Four of the five Sahtu communities—governed regionally by the

Sahtu Secretariat, but with seven separate community land corporations—are in the process of negotiating community-based self-government agreements. The only self-government agreement signed to date is the Deline Got’ine Government, which created a combined public-Indigenous community government that serves and represents both the citizens of the Deline First Nation,

-307- and residents of the Deline District. By the end of the process, the Sahtu region will be governed by one regional land claims organization, seven community land corporations, and five community governments all of which will subsequently shape the politics of a region that today faces considerable industry interest over shale gas resources (to be developed through fracking technology).

This research can also assist us in thinking through implications of institutional change, projecting outwards the potential impacts of integrating more robust shared-rule institutions in

Alaska. While likely far from salient in state politics, there is a case to be made for creating venues of joint decision making with Alaska’s Indigenous nations, particularly in the regulatory processes of the state. One theme that clearly emerged from the cross-case comparison was the relative lack of legitimacy of state and federal regulatory processes in Alaska, which largely exclude Indigenous nations from decision making processes. While there is a requisite process of consultation, these outreach efforts are generally lacking legitimacy in the eyes of Indigenous nations.

There are limited mechanisms for Indigenous oversight of project development and land use planning, primarily over projects on Indigenous-owned lands. They entail public Indigenous governments (the boroughs), and wildlife co-management organizations that may influence project development through negotiations with industry. However, the Alaska state and United

States federal regulatory processes have few such mechanisms, and as such, they lack any feeling of ‘ownership’ on the part of Indigenous nations. Creating mechanisms for joint decision making appears to have been crucially important in reducing internal conflicts over resource development projects in both the pipeline and offshore development cases in the Northwest

Territories, and may hold opportunities for emulation in Alaska. However, in seeking legitimacy,

-308- lessons can be learned from the case of the Red Dog Mine. It shows clearly that the institutional foundations of the sites of decision making are important for the legitimacy of the process and of the outcome. Although the NANA Regional Corporation created a process for Indigenous citizen involvement, through the development external advisory board tasked with overseeing the environmental compliance of the mine, the relationship of that board to the corporation’s core priorities undermined its findings and its legitimacy as a check on development.

These results point us toward some important perspectives on the evolution, and current practice of governance models. While it is clear that the current models of governance have moved Indigenous nations in both Alaska and northern Canada toward the realization of their economic and political self-determination, there is still a wide gulf to close between those aspirations and the reality on the ground. The opportunities to close the gap, though, will continued to be constrained by the federal systems in which they operate. Alaska Native groups will likely continue to face a rigid political system, with few opportunities to consolidate their governing authority. Instead, they will have to rely on fragmented governance models to patch together self-determination. Indigenous groups in Canada, meanwhile, face an uphill battle on the long path of negotiation. Despite an updated policy of negotiation, federal political will to finalize modern treaties and self-government ebbs and flows, and depending on the jurisdiction, provincial and territorial governments have proven more or less willing to respond favourably to

Indigenous assertions of self-determination. The development of Indigenous governing authority is a dynamic process, with uncertain outcomes. Nonetheless, opportunities for advancement and empowerment remain, and should be explored.

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Appendices

Annex I: Chapter Five Appendices

Appendix I-A: Coding Schematic

Table I-A1: Institutional Fragmentation

Fragmentation Local- The extent to which local 0-2 0 Local institutions have no coordinated role or relationship Regional institutions have a formal with regional governance organizations Institutional relationship with regional 1 Local institutions have ad hoc role or relationship with Relationships institutions regional governance organizations [LR] 2 Local institutions have legislated/formal mechanisms Regional The extent to which 0-2 0 Regional institutions have no coordinating mechanisms Institutional regional institutions have for regional governance Relationships a formal relationship with 1 Regional institutions have ad hoc mechanisms for [RR] one another coordinating regional governance 2 Regional institutions have legislated/formal mechanisms

Table I-A2: Institutional Identity

Identity National The extent to which 0-2 0 Institutions divide national populations across new mixed- Disaggregation institutions divide singular national groups [ND] nations into new groups / 1 Institutions divide national populations into distinct, but identities nationally-consolidated institutions 2 Institutions do not divide national populations National The extent to which 0-2 0 Institutions combine several distinct national groups Consolidation institutions combine 1 Institutions combine distinct national groups, but there is a [NC] distinct Indigenous majority national population national groups 2 Institutions distinct to one national population Institutional The extent to which 0-2 0 No linkage to national identities in institutional mandates Identity institutions integrate 1 Linkage created through ad hoc mechanisms [II] identity into their 2 Linkage to national identity enshrined in legislation or institutional framework other formal mechanisms

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Appendix I-B: Regional Coding

Table I-B1: Regional Scores of Fragmentation & Identity – Alaska

Institutional Integration Institutional Identity Alaska Regions [LR] [RR] Total [ND] [NC] [II] Total Cook Inlet 1 1.5 2.5 0 0 0.5 0.5 Cook Inlet Tribal Council 2 2 0 0 0.5 Cook Inlet Region, Inc. 0 1 0 0 0.5 Chugach 1 1 2.0 0 0 0.5 0.5 Chugachmiut 2 1 0 0 0.5 Chugach Inc. 0 1 0 0 0.5 Interior 1.5 1 2.5 0 0 0.5 0.5 Tanana Chiefs Conference 1 1 0 0 0.5 Doyon Ltd. 2 1 0 0 0.5 Ahtna 2 1 3.0 0 0 0.5 0.5 Copper River Native Association 2 1 0 0 0.5 Ahtna, Inc. 2 1 0 0 0.5 Southeast 1 1.25 2.25 2 0 1 3 Tlingit-Haida Central Council 2 1.5 2 0 2 Sealaska Corporation 0 1 2 0 0 Kodiak 1 1 2.0 0 0 0.5 0.5 Kodiak Area Native Association 2 1 0 0 0.5 Koniag, Inc. 0 1 0 0 0.5 Aleut 1 1 2.0 0 0 0.5 0.5 Aleutian/Pribilof Islands Association 2 1 0 0 0.5 The Aleut Corporation 0 1 0 0 0.5 Bristol Bay 1 1 2.0 0 0 0.75 0.75 Bristol Bay Native Association 2 1 0 0 1 Bristol Bay Native Corporation 0 1 0 0 0.5 Bering Straits 1 1 2.0 0 0 1 0.75 Kawerak, Inc. 2 1 0 0 1 Bering Straits Native Corporation 0 1 0 0 0.5 Yukon Kuskokwim Delta 1.5 1 2.5 0 0 0.5 0.5 Assoc. of Village Council Presidents 2 1 0 0 0.5 Calista Corporation 1 1 0 0 0.5 Arctic Slope 2 1 3.0 1.25 1.5 1.75 4.5 North Slope Borough 2 1 0 0 2 Inupiat Community - Arctic Slope 2 1 2 2 2 North Slope Native Association 2 1 2 2 2 Arctic Slope Regional Corporation 2 1 1 2 1 Northwest Arctic 2 1.5 3.5 1 1.3 1.7 4.0 Northwest Arctic Borough 2 1.5 0 0 1 Maniilaq 2 1.5 2 2 2 NANA Regional Corporation 2 1.5 1 2 2

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Table I-B2: Regional Scores of Fragmentation & Identity – Northwest Territories

Institutional Consolidation Institutional Identity NWT Regions [LR] [RR] Total [ND] [NC] [II] Total Inuvialuit Settlement Region 2 1.5 3.5 2 2 2 6.0 Inuvialuit Regional Corporation 2 1.5 2 2 2 Inuvialuit Game Council 2 1.5 2 2 2 Gwich’in Region 2 2 4.0 2 2 2 6.0 Gwich’in Tribal Council 2 2 2 2 2 Sahtu Region (Dene and Métis) 1 1 2.0 1.3 1.3 2 2.8 Sahtu Secretariat 2 1.5 1 0 2 Sahtu Dene Council 1 1.5 1.5 2 2 Sahtu Métis 0 0 1.5 2 2 Tlicho Region 2 2 4.0 2 2 2 6.0 Tlicho Government 2 2 2 2 2 Dehcho Region (Dene and Métis) 1.5 0.5 2.0 0 2 2 4.0 Decho First Nations 2 1 0 2 2 Decho Métis 1 0 0 2 2

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Table I-B3: Summary – Regional Scores (Alaska & NWT)

Institutional Fragmentation Institutional Identity Alaska Regions Cook Inlet Region 2.5 0.5 Chugach Region 2.0 0.5 Tanana Region 2.5 0.5 Copper River Region 3.0 0.5 Tlingit-Haida Region 2.25 3 Kodiak Region 2.0 0.5 Aleut Region 2.0 0.5 Bristol Bay Region 2.0 0.75 Bering Strait Region 2.0 0.75 Association of Village Council 2.5 0.5 Presidents Arctic Slope Region 3.0 4.5 Northwest Alaska Region 3.5 4 Average 2.4 1.4 NWT Regions Inuvialuit Settlement Region 3.5 6.0 Gwich’in Region 4.0 6.0 Sahtu Region 2.0 2.8 Tlicho Region 4.0 6.0 Dehcho Region 2.0 4.0 Average 3.1 5.0

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Annex II: Chapter Six Appendices

Appendix II-A: Beaufort Offshore Drilling

Figure II-A1: Proportion of Debate For/Against Offshore Drilling

100%

75%

Arguments in favour of development 50%

Arguments against development

PercentCoverage 25%

0% 2008/09 2010/11 2012/13 2014/15 Year

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Table II-A1: Arguments In Favour of Development Theme Argument # Arguments Total Coded129 Coded [N = 186130] Drilling/development can balance profit and environment 13 Development leads to economic growth, self-determination 10 Economic Exploration is positive for the region 6 44 IRC-Inuvialuit have strong business ties 5 Offshore will result in regional economic boost 10 Environmental concerns have been addressed 2 Proof of liability insurance = good 4 Environmental 31 Same-season relief well policy will ensure safety 7 Management regimes are adequate 18 Inuvialuit institutions protect land/regulate development 24 Offshore drilling moratorium is not the answer 3 Governance 39 NEB & EIRB regulatory streamlining = effective mgmt. 4 Training and resources will ensure drilling is done safely 8 Process Environmental groups do not consult northerners 6 Regulation is burdensome – impacts investment 8 Same-season relief well is unnecessary 14 49 Industry consultation is adequate 10 Northerners should be making decisions 3 Regulatory processes ensure Inuvialuit involvement 8 Social Jobs for beneficiaries 13 Training on spill response has spin-off benefits 8 23 Development will help address social issues 2

129 Total coded to a theme includes arguments coded to the thematic parent node (Economic / Environmental / Governance / Process / Social) 130 Includes arguments coded to the parent node “Arguments In Favour of Development.”

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Table II-A2: Arguments Against Development

Theme Argument # Arguments Total Coded131 Coded [N = 146132] Indigenous groups need to have ownership 2 Economic Economic benefits (i.e. jobs) will bypass the north 6 12 Industry is boom and bust 4 Concerns raised about offshore drilling 11 Environmental risks are associated with development 27 Environmental Population lacks understanding/information about risks 4 53 Lands and waters need protecting 4 Pollution/development will impact wildlife 7 Management regimes are inadequate 7 Moratorium is needed on offshore drilling 6 Governance 52 Resources are limited re: liability 15 Spill response, training, infrastructure are inadequate 24 Process Inuvialuit face barriers to participating in consultation 8 14 Lack of consultation 6 Social Development will impact culture and subsistence 12 15 Social needs should be addressed before drilling 3

131 Total coded to a theme includes arguments coded to the thematic parent node (Economic / Environmental / Governance / Process / Social) 132 Includes arguments coded to the parent node “Arguments Against Development.”

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Appendix II-B: Mackenzie Gas Project

Table II-B1: Arguments In Favour of Development

Theme Argument # Arguments Total Coded133 Coded [N = 651134] Indigenous groups will have ownership 35 APG 30% stake is fair 15 Access and Benefit agreements 67 Deal is good for NWT Indigenous groups 34 Government(s) have financial responsibility 22 Economic Industry responsible for addressing social issues 3 300 Pipeline means economic self-determination 42 Tired of dependence on government 8 NWT pipeline cheaper and faster to build 16 Resource revenues will be in the m(b)illions 33 Taxation of industry is reasonable 6 Environmental concerns have been addressed 15 Environmental Management regimes are adequate 27 45 Natural gas is more environmentally friendly 3 Indigenous groups have capacity 25 Deal is fair to all NWT Indigenous groups 4 Governance 68 Settled land claims make way for development 22 Dehcho demands are unreasonable 16 Process Regulation is burdensome – impacts investment 21 NWT pipeline becoming too expensive – delays 17 Delays are the fault of government 21 117 Delays are the fault of industry 4 IRC has strong business ties 3 Social Costs will decrease for northerners 6 Jobs for beneficiaries 46 77 Development will help address social issues 11 Will not affect culture/culture changing regardless 8

133 Total coded to a theme includes arguments coded to the thematic parent node (Economic / Environmental / Governance / Process / Social) 134 Includes arguments coded to the parent node “Arguments In Favour of Development.”

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Table II-B2: Arguments Against Development

Theme Argument # Arguments Total Coded135 Coded [N = 325136] Indigenous groups need to have ownership 13 100% stake is better of NWT Indigenous groups 22 Access and Benefit Agreements 1 Economic A&B deal is not good enough 13 99 A&B expectations unreasonable/too expensive 9 Industry not responsible for social issues 8 Benefits of development are disproportional 33 Environmental impacts will be felt from development 22 Environmental 44 Environmental impacts are disproportional 22 Dehcho land claims need to be settled 37 Governance 76 Difference between land claims affect board makeup 39 Process Consultation - Lack of consultation 27 Too much consultation 5 51 Representational concerns 2 Conflict of interest affecting decision-making 5 Process lacks transparency 10 Social Development will impact culture and subsistence 12 Development will exacerbate social issues 20 41 Will not improve job prospects / costs for northerners 6

135 Total coded to a theme includes arguments coded to the thematic parent node (Economic / Environmental / Governance / Process / Social) 136 Includes arguments coded to the parent node “Arguments Against Development.”

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Figure II-B1: Proportion of Arguments For/Against Development, by Actor [% total debate]

Indigenous Citizens [4.0] Environmental Organization [1.2] Citizens-Northerners [2.9] Regulatory Agencies [2.3] Media [3.2] Indigenous Institutions-Leaders [61.6] Subnational Governments [7.2] Local Government [2.2] Industry [12.4] Federal Government [3.2]

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Arguments against development Arguments in favour of development

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Annex III – Chapter Seven Appendices

Appendix III-A: The Red Dog Mine

Table III-A1: Arguments In Favour of Development

Theme Argument # Arguments Total Coded137 Coded [N = 502138] Indigenous groups will have ownership 9 Economic self-determination 35 Economic Resource revenue sharing agreement 31 122 Direct dividends to shareholders 3 Resource revenues will be in the m(b)illions 33 Environmental concerns have been addressed 61 Environmental 112 Management regimes are adequate 48 Governance Settled land claims make way for development 1 1 Process Communication and consultation adequate 25 Regulatory burden is reasonable 17 69 Regulation is burdensome – impacts investment 26 Social Culture is changing regardless 3 Jobs for beneficiaries 59 No immediate health risks from development 57 165 Subsistence lifestyle unaffected 34 Development will help address social issues 11

137 Total coded to a theme includes arguments coded to the thematic parent node (Economic / Environmental / Governance / Process / Social) 138 Includes arguments coded to the parent node “Arguments In Favour of Development.”

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Table III-A2: Arguments Against Development

Theme Argument # Arguments Total Coded Coded [N = 368139] Benefits of development are disproportional 11 Economic Development is too expensive 9 24 Industry not responsible for social issues 2 Development will cause significant pollution 96 Environmental Impacts of development are disproportional 3 126 Pollution affects vegetation and wildlife 15 Federal government should be regulating 16 Governance 38 Regulatory role should belong to the state 22 Process Consultation - Lack of consultation 12 Too much consultation 9 54 Representational concerns 1 Conflict of interest affecting decision-making 8 Screening process is inadequate 24 Social Benefits (including jobs) will bypass northerners 3 Development will impact culture and subsistence 62 116 Development will impact health of local communities 50

139 Includes arguments coded to the parent node “Arguments Against Development.”

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Figure III-A1: Proportion of Debate For/Against Red Dog by Actor [% total debate; N=870]

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Advocacy Organizations [12] Judicial Branch [2] Indigenous Citizens [11] Citizen (Other) [3] Regulatory Agencies [12] Federal Government [1] Indigenous Institutions-Leaders [24] Industry [14] Media [14]

Arguments Against Development Arguments in Favour of Development

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Appendix III-B: Chukchi and Beaufort Offshore Exploration and Drilling

Table III-B1: Arguments In Favour of Development

Theme Argument # Arguments Total Coded140 Coded [N = 910141] Drilling/development can balance economy & environment 70 Economic benefits for Alaska 51 Economic 151 Economic benefits for Alaska Natives 13 Investments & resource revenues will be in the m(b)illions 12 Arctic environment conducive to spill cleanup 4 Environmental concerns have been addressed 52 Impact on wildlife is minimal 17 Environmental 175 Major spill is unlikely 43 Management regimes are adequate 52 Offshore development will not affect wildlife/subsistence 7 Moratorium is the wrong thing to do 14 No representational concerns (i.e. conflicts of interest) 4 Governance Offshore development means energy security 33 133 Oil spill infrastructure and response is sufficient 77 Operations conducted safely 5 Process Communication and consultation is adequate 35 Regulatory framework - Lawsuits stall development 46 Regulation is burdensome – impacts investment 91 260 Regulation should be streamlined 17 Regulatory burden is reasonable 16 Screening process is sufficient 55 Social Industry invests in community 2 Jobs for Alaska Natives (shareholders) 3 Jobs for northerners (Alaskans) 54 80 Development-pollution has no health impacts 5 Subsistence lifestyle unaffected 15

140 Total coded to a theme includes arguments coded to the thematic parent node (Economic / Environmental / Governance / Process / Social) 141 Includes arguments coded to the parent node “Arguments In Favour of Development.”

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Table III-B2: Arguments Against Development

Theme Argument # Arguments Total Coded142 Coded [N = 836143] Economic benefits bypass the state 13 Economic 30 Economic benefits will bypass Alaska Natives 12 Arctic environment is harsh & dangerous 31 Arctic environment makes spill cleanup more difficult 84 Development will cause significant pollution 47 Environmental 329 Development/pollution impacts vegetation and wildlife 107 Major offshore spill is likely 30 Risks need to be minimized/mitigated 25 Health & safety issues with operation 25 Regulation is inadequate 19 Governance 149 Should be a moratorium on offshore development 9 Spill response infrastructure is lacking 96 Process Lack of consultation-trust 21 Representational concerns (i.e. conflict of interest) 6 173 Screening process is inadequate 88 Social Development will impact culture and subsistence 110 123 Development will impact health of local communities 12

142 Total coded to a theme includes arguments coded to the thematic parent node (Economic / Environmental / Governance / Process / Social) 143 Includes arguments coded to the parent node “Arguments Against Development.”

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Figure III-B1: Proportion of Arguments For/Against Development by Actor [% total debate]

Environmental Organization [11.7] Indigenous Citizens [5.7] Indigenous Institutions-Leaders [13.7] Citizens-Northerners [6.8] Media [9.3] Federal Government [14.3] Regulatory Agencies [11.5] State of Alaska [5.9] Industry [21.1]

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Arguments against development Arguments in favour of development

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Table III-B3: Petitions & Appeals – Litigation to Block Development by Indigenous Groups

Date Reference # Indigenous Institution OCS144 07-01 Resisting Environmental Destruction on Indigenous Lands, REDOIL 07/16/2007 OCS 07-02 North Slope Borough*145 North Slope Borough* OCS 08-02 Inupiat Community of the Arctic Slope 07/21/2008 Alaska Eskimo Whaling Commission^146 OCS 08-03 Resisting Environmental Destruction on Indian Land (REDOIL) Native Village of Point Hope 09-73942147 Resisting Environmental Destruction on Indigenous Lands, REDOIL^ Alaska Eskimo Whaling Commission^ 09-73944 Inupiat Community of the Arctic Slope 05/06/2010 Native Village of Point Hope 10-70166 Resisting Environmental Destruction on Indigenous Lands, REDOIL^ Alaska Eskimo Whaling Commission^ 10-70368 Inupiat Community of the Arctic Slope Native Village of Point Hope OCS 10-02 Resisting Environmental Destruction on Indigenous Lands, REDOIL^ 05/03/2010 Alaska Eskimo Whaling Commission^ OCS 10-03 Inupiat Community of the Arctic Slope Alaska Eskimo Whaling Commission^ 05/12/2010 OCS 10-12 Inupiat Community of the Arctic Slope Native Village of Point Hope OCS 11-02 Resisting Environmental Destruction on Indigenous Lands, REDOIL^ 10/24/2011 Alaska Eskimo Whaling Commission^ OCS 11-03 Inupiat Community of the Arctic Slope Native Village of Kivalina 11/28/2011 09-17490 City of Kivalina* OCS 11-05 Resisting Environmental Destruction on Indigenous Lands, REDOIL^ 03/30/2012 OCS 11-06 Inupiat Community of the Arctic Slope Native Village of Point Hope 11-72891 05/15/2012 Resisting Environmental Destruction on Indigenous Lands, REDOIL^ 11-72893 Inupiat Community of the Arctic Slope 12-70440 Inupiat Community of the Arctic Slope 05/29/2012 Native Village of Point Hope 12-70459 Resisting Environmental Destruction on Indigenous Lands, REDOIL^ 08/28/2012 12-70518 Resisting Environmental Destruction on Indigenous Lands, REDOIL^ Native Village of Point Hope 03/05/2013 12-35287 Inupiat Community of the Arctic Slope Resisting Environmental Destruction on Indigenous Lands, REDOIL^ 05/21/2013 12-71506 Resisting Environmental Destruction on Indigenous Lands, REDOIL^ 08/13/2013 12-35976 Native Village of Point Hope 08/13/2014 13-35835 Resisting Environmental Destruction on Indigenous Lands, REDOIL^

144 OCS refers to petitions to the EPA Board of Appeals, which were discontinued in 2011 when authority over permitting was transferred to the Department of the Interior. 145 * Refers to public institutions that operate as Indigenous institutions. 146 ^ Refers to Indigenous Citizens-Group or Non-Governmental Organization. 147 Numbered petitions refer to cases heard by the U.S. Court of Appeals for the 9th Circuit.

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