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Alaska Native Tribes Battle Discri'ifi"Nat,On··· · Bybobanderson and Lare Aschenbrenner

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Alaska Native Tribes Battle Discri'ifi National Indian Law Library NILL No. 010032/1986 Alaska Native Tribes Battle DIScrI'IfI"nat,on··· · byBobAnderson and Lare Aschenbrenner From the purchase ofAlaska in 1867 to the Alaska established a complex landholding systemwith title Native Claims Settlement Act (ANCSA) in 1971, vested in Native corporations rather than tribes.. The Federal officials have generally taken the position lands of these corporations are not held in trust by that Alaska Native tribes have the same legal status as the federal government nor protected against alien­ tribes in the lower 48.. Since 1971, however, the ation as are tribal lands in the lower 48. Rather, over Interior Department has equivocated on this issue 200 Native corporations created byANCSA obtained and even opined thatANCSA impliedly extinguished unrestricted title to the lands they received. Aborig­ at least some tribal rights inal hunting and fishing rights, which are The position of the State on the other hand has generaUy protected by treaty in the lower 48, been perfectly clear The State maintains that aside wereextingUishedbyANCSA, butwith theexpec­ from the Metlakatla Tribe, there are no "tribes" in tation that the State ofAlaska andSecretary of Alaska and that even if there were, their govern­ Interiorwouldprotectthesubsistence needs of mental power was extinguished by ANCSA As a Natives. With respect to the 200 Native tribes result, for the past 26 years the governmental whose land claims were being settled, ANCSA is authority of Alaska tribes has been challenged at strangely silent every turn and they have been the constant subjects The 15 years which have passed since ANCSA was of discrimination and oppression. adopted have provided sufficient time to evaluate its Alaska Natives are demanding that their inherent effects on the three great concerns ofAlaska Natives rights be recognized and respected This baUle to - land protection, subsistence and tribal self­ achieve equality with their sister tribes to the government South is now being renewed in Washington as Congress considers amendments to ANCSA (continued un fle.X'! page) before the Native protections in it expire on December 18, 1991. At the same time, overly restrictive state regulations which deny Native sub­ sistence rights are being battled in the courts The Alaska Native Claims Settlement Act was ~~ passed in 1971 to settle the aboriginal claims of EJt'~ Contents: Vol. II, No.3 Summer 1986 Alaska's Aleuts, Eskimos and Indians Federal law , '\ recognizes the right of Native people to use and il Alaska Native Tribes Battle Discrimination ; J occupy traditional areas free ofoutside interference ~ until their aboriginal title has been extinguished By •..l'.... Revitalizing Tribal Self'GOVernment. ... ~ fhrough Retrocession .. .. .... 8 the late 1960s Native land claims had clouded the ~ "\. :"J C-,-.ase Updates .. ...... 9 title to most of Alaska and created a barrier to the ~ 10 ,.~ .... ~ol"H .............. ...." ...... t- ,......( ,-~';1 ,.....rt t-hp 1\J,....",.,..·t-h ,1,,....... .,......p A. Nr,A • NARF Resources and Publications \...lL,"Ll'-JlJ111L111. VJ. Vi.l '-.Il.l L.l'- l"lV....J.J. oJJ.vy................ ~'--- ............. orr settled these claims and removed that barrier ~ ANCSA was fundamentally different from earlier Native land claim settlements in several respects. It N r\..} I' !I i' \- The Danger to Native Land Ownership The danger to continued Native land ownership has arisen because of the unique terms of ANCSA Although ANCSA settled the aboriginal land claims ofAlaska Native tribes, the 44 million acres received in the settlement were not placed in tribal owner­ ship.. Rather, they were transferred to the newly created corporations with the stock held by indiv­ idual Natives who were alive on December 18, 1971 To protect Native ownership during an interim period, sale of stock was prohibited for 20 years, during which time all undeveloped land was also immune from taxation. On December 18, 1991, however, the shares become freely alienable and shortly thereafter all land becomes subject to taxation Thus, after 1991 Native Corporations and their land will be in jeopardy of being taken over by non­ Native interests. Further, unlike tribal lands in the lower 48, lands acquired by Native corpor­ ations under ANCSA are presently subject to loss throughjudicialsalefor baddebts, adverse possession and condemnation, and developed lands arepresently subject to taxes and there­ fore in dangerofloss through taxforeclosure. In addition, Native stock is presently being lost to non-Native ownership through inheritance and court decrees in divorce and child support proceedings In 1980 ANCSA was amended to add two safe­ guards against non-Native takeovers of Native corporations and their land nlese amendments authorize corporations to deny voting rights to non­ Native stockholders and grant the corporations and/or the shareholder's family the first right to purchase Native shares before they may be sold to Charles Hanso!l fishing ON I/)" } 1Ik-()1l ~ tllIJul1nlik Haska third parties © PhOlograrh~ h) larm:,> II. Ittrkl r The voting rights safeguard unquestionably has merit The "right of first relusal," however nice in and that even if there were, ANCSA impliedly theory, will not likely see much practical application terminated them. Further, the State argues that since few village corporations or Native families even if the tribal powers were not extinguished by have the cash to bm out other shareholders Al­ ANCSA they can not be exercised because, aside though there is some disagrccme nt on specifics, the from the Metlakatla'S Reservation, there is no Native community is unanimollsl\ agreed that ad­ "Indian Country" and therefore no territorial juris­ ditional protC'ctions arc flU cssan to protect the diction within which to exercise them The State land admits that there are some .zoo Native "C'ntitiC's" out in the Bush that mav call themselves tribes and even The Danger to Tribal Self-Government act like tribes According to the State, however, the\ lhe uflcertaint\ regarding '\,ati\ e p()\vers of self­ are nothing more than social clubs with membership government has arisen trolll the state s position that based on race and utterly lacking in governmental aside from Metlakatla. there arc flO "tribes" in Alaska powers - with the sole exception of rights granted and the Department of the Interiors failure to fulfill by the Indian Child Welfare Act of I<)7R Having concluded that Nati\e trihes are not its trust responsibilitv to protect tribal self-govern­ C> ment in the Bush The 5tate contends that there governments but racial institutions, the State, not never were tribes that e.xercised!Jowers ofselJ­ surprisingly, maintains that it \\ollld violate both the gOllernment simiulr to tribes in the lower 48, Federal and State Constitutions for it to provide 2 The NARF legal Relliew, Summer 1986 financial aid or deal with them on a government to could continue their subsistence wayoflife Neither government basis or single them out for discrete the State nor Interior lived up to this expectation.. In treatment The result has been predictable. The recognition of this failure, in 1980 Congress passed State fights Native efforts to exercise theirpowers of ANILCA which gave rural Alaskans (primarily Na­ self-government every step of the way, on every tive) priority rights to hunt and fish for subsistence conceivable issue and in every available forum purposes.. Thus, ANILCA partially restored the sub­ Thus, tbe usual and ordinarypowers oftribal sistence rights which ANCSA extinguished The government, wbicb are taken for granted in State and federal governments, however, have failed tbe lower 48, are botly contestedinAlaska. The to enforce the subsistence priority ofANILCA. The issues include, for example, whether tribes can state's failure is due primarilyto its innate hostilityto establish courts, pass zoning ordinances, issue adop­ Native subsistence rights and obviouspreferencefor tion decrees, tax, regulate hunting and fishing, etc sport and commercial interests.. The federal gov­ Meanwhile, the Department of the Interior stands ernment's failure is inexplicable as well as blithelyaside, refusing to take a stand on any ofthese inexcusable. issues thereby violating the express polk)' of the Proposed Amendments Provide Administration to support tribal self-government, not to mention its trust responsibility to Alaska Limited Protections Natives. At the request ofthe Alaska Federation ofNatives, the statewide Native organization primarily repre­ senting Native corporations, nearly identical bills have been introduced this year in each house of Congress to amend ANCSA, HR 4162 and S. 2065 Although subsistence is not addressed in either Bill, they do provide essential but limited protection against several of the dangers to continued Native land ownership. First, theyautomaticallyextend the restriction on alienation ofstock beyond 1991 thus preventing non-Native corporate takeovers through purchase of Native shares.. Second, they authorize Native corporations to transfer land to otherentities as a means of protecting Native ownership. And third, they give "land bank" protection to corpora­ tion lands which remain undeveloped, unleased, or The Danger to Native Subsistence Rights are used solely for exploration Although these protective devices are important, Arbitrary regulatory restrictions which deny Na­ they do not go far enough Extending the restriction tive customary rights to hunt, fish and trap are the
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