Landholders or Shareholders? The Tribal Movement in Alaska
The 1990s may prove a dramatic decade for Native Americans as managers of land and resources. This is particularly true in the western United States, where large mineral and timber reserves are located on tribal lands and scarce water resources are stretched among Indian and non-Indian users. Beginning in the late 1960s and 1970s, Indian tribes in the lower 48 states (colloquially known as "the lower 48") began to react to pressures from outside industries and developers interested in tribal resources. They began organizing and developing the technical and legal means to control the management and development of their natural resources. Several tribes have established corporations and own and operate natural resource industries: the Confederated Tribes of the Warm Springs Reservation own and operate a hydroelectric facility; the Jacarilla Apache Tribe has an oil and gas drilling operation; and the Coleville Confederated Tribes, the Menominee Tribe, and others operate timber logging and milling businesses.
For many observers of native rights and resource development issues, it is common to focus on the energy and water resource tribes of the lower 48. Alaska Native often are considered to be a "special case," removed geographically and politically from the conflict-ridden arena of federal-Indian relations. Alaska is a rural state and a big one - more than a half million square miles. Alaska Native have not experienced the warfare, removal, and relocation onto reservations that tribes in the lower 48 have. Moreover, the 1971 Alaska Native Claims Settlement Act (ANCSA) gave title to 44 million acres - nearly one-tenth of the state - to approximately 80,000 Natives. Given these conditions of space and relative noninterference by non-Natives, Alaska Natives are often perceived as far more secure than reservation tribes outside Alaska in their tribal status as separate, self-governing entities.
And yet Alaska Natives have just recently begun to assert many of the claims of sovereignty, self-determination, and government powers that have been the major emphasis of tribal self-determination movements in the lower 48 since the 1960s. A pan-Alaskan movement is taking hold among Natives who are calling for political sovereignty and control over land and resources by Native villages. And ironically, it is the 20 years of experience under ANCSA, the largest legislated land settlement for Native Americans in the history of federal-Indian relations, that is the source of Native discontent. Across the state, Alaskan villages, the unit of local government for Alaska Native groups, are beginning to organize and find a new voice to assert rights of self-government and economic self-determination. The central issue in this effort is control of the land and resources - the same issue that ANCSA was designed to address.
The tribal movement in Alaska is not new; nor are the issues it addresses. Villages and various Native coalitions have championed issues of political sovereignty and land and subsistence rights since the early part of this century. In 1935, the Tlingit and Haida began a 30-year court battle to establish their aboriginal claims to lands in the Tongass National forest. It was in the context of increasing pressures of land allocation and development during the 1960s that land claims became a unifying issue for Alaska Natives throughout the state, and the Alaskan Federation of Natives, a statewide organization, was formed. What is new is the broad level of support and general agreement among the 200-odd village in the state on the importance of tribal government control of the land. Beyond the promises and failures of ANCSA, they are now focusing on how best to protect their land claims and the culture that depends on it. They are seeking a definition of native territory, "Indian Country," to establish the geographic boundaries within which tribal self-government and federal Indian legislation apply. It is this aspect of tribalism - a bounded, separate territory - that is a key difference between the status of tribes in the lower 48 and Alaska Natives, and is the security that ANCSA did not deliver.
Native Land and Indian Policy in Alaska
It was in 1884, 17 years after the United States purchased Alaska from Russia, that Congress first recognized the rights of Alaska Natives to continue undisturbed in their possession of any land in their use, occupation, or claimed by them until terms under which they could acquire title were decided. There were no wars or formal treaties between Alaska Natives and the federal government; no reservations were established. Aboriginal title to lands and subsistence resources was held subject to the will of Congress, just as Congress has had broad plenary powers over Indian affairs in the lower 48 since the early nineteenth century. When the Indian Reorganization Act (IRA) passed in 1934, tribes were encouraged to organize and adopt tribal constitutions, including the power to prevent and/or control the transfer of tribal lands and other assets. The IRA was extended to Alaska two years later, with allowances that Native would be considered tribes based on the land they occupied rather than any set reservation boundaries.
The impetus for defining Native land claims in Alaska finally came in the 1960s. By that time, the timber industry was in full swing in southeast Alaska, the area now known as the Tongass National Forest. The State of Alaska was making land selections for 103 million acres under the 1959 Statehood Act, and pressures for opening up Alaska's north coast for oil development were growing. ANCSA was passed in 1971 to establish, once and for all, the extent and boundaries of Alaska Native land claims while avoiding the failures and socioeconomic ills associated with the reservation system outside Alaska. ANCSA sought to bring Natives into the mainstream of the state economy and culture as corporate shareholders of much of Alaska's resource capital.
The Alaska Native Claims Settlement Act
The Alaska Native Claims Settlement Act is a complex piece of legislation. Its salient features include the grant in full fee title of 44 million acres of land to Alaska Natives, payment of $962.5 million to Alaska Natives, and the requirement that these assets be managed through 12 regional corporations and more than 200 village corporations to be established according to state law. Natives claiming to have at lease one-quarter Native blood could enroll as stockholders in both their local village corporation and in the regional corporation. Village entities received only the surface title to their lands, while regional corporations received the subsurface title to village lands as well as the surface and subsurface right to regionally held lands. Natives who did not permanently reside in the state could join one of the regional corporations or the "13th Regional Corporation," based in Seattle. Finally, all shares in Native corporations were made nontransferable until 1991, when all outstanding shares would be called in and new shares issued for sale to Natives and non-Native alike.
Two key features of the law have been refined in subsequent legislation: provisions dealing with Native subsistence rights and with the ultimate control or disposal of Native lands. It is these two elements of ANCSA and the years of conflict and litigation they have wrought, that have galvanized the tribal movement in Alaska.
ANCSA extinguished aboriginal title to lands throughout Alaska, and by conveying lands to the Native sin full fee title, Congress refrained from establishing the basis for any new federal trust responsibilities for managing tribal land and resources. Having extinguished aboriginal claims to subsistence hunting and fishing, Congress directed the state and the Department of the Interior to nevertheless protect subsistence on these lands. Subsistence rights were subsequently strengthened in 1980 legislation, but have since been a major point of conflict between Alaska Natives and the state. More recently, 1989 amendments to ANCSA (referred to as the "1991 amendments") addressed growing Native concerns that shares would be sold and lands lost once they became negotiable. The amendments set up procedural barriers to prevent the alienation of Native assets (i.e., land) by the Native corporations created to manage them.
Nearly 20 years have passed since ANCSA became law in 1971. A review of ANCSA as a land settlement and as Indian legislation suggests that it was a limited success at best. As a land act, the settlement was substantial; large enough to convince many observers, particularly non-Natives, that Alaska Native had gotten a good deal - perhaps too good. The corporate model of economic development, it was assumed, would improve the socioeconomic status of Natives by bringing profits to shareholders in the form of dividends and by creating jobs in resource-based industries such as fishing, timber harvesting, and mining. At the same time, corporations, in order to make profits, were expected to participate in the main activities of Alaska's economy: commercial fishing, canneries, minerals, coal, timber, tourism, and, above all, oil and gas production.
The 12 regional corporations differ considerably in the number of enrolled shareholders, resource base, and demographics (i.e., rural or urban). The Cook Inlet Corporation, based in anchorage, has the most urban stockholders and interest in oil and gas, agriculture, government services, transportation, and commercial businesses. By comparison, the Konaig corporation, which includes Kodiak Island, has the smallest land area and is almost exclusively invested in the seafood industry. All of the regional corporations have experienced some losses, more than one has considered bankruptcy, and all have been faced with high costs and problems of limited expertise in corporate administration. By 1985, it seemed that the condition of regional corporations was improving and that they were contributing to economic development by investing in natural resource industries.
In brief, the economy of Alaska has improved over the last 20 years, but not as a result of ANCSA and the contribution of regional corporations and resource development in the private sector. Since the discovery of oil at Prudhoe Bay, oil and gas exploration and development has been the primary growth industry in Alaska, providing nearly all of the state's revenues. At the same time, the size of government institutions and services has expanded to become the largest source of employment in the state. The rate of production at Prudhoe Bay is now peaking and will soon decline; government spending as already begun to decline.
Village corporations have suffered many more losses than regional entities. With little capital, lack of management expertise, high administrative costs of selecting land and litigating to secure conveyance of the land, and conflicts between regional and village corporations, they have fared poorly. while it is generally acknowledged that housing, income, and schooling at the village level have all improved over the past two decades, this is because of increased government spending rather then corporate investments in rural areas. In short, while the indices of socioeconomic conditions have improved, and some individual natives, primarily those employed by the corporations, have clearly benefited from ANCSA, the act has brought "little or no direct benefit to the Native family" (Janie Leask, president of Alaska Native Federation, to President's Commission on Indian Reservation Economies, in Berger 1985:30).
As Indian legislation, ANCSA has been heralded as a progressive departure from the reservation system and the incumbent federal trust authority over tribal resources. The settlement broke from the tradition of US policy that has recognized and distinguished tribal institutions and culture and land. The era off tribal self-determination had just dawned with President Nixon's message to congress in 1970 that federal policy must seek to strengthen reservation economies and governments. And yet, in the broader context of US Indian policy, ANCSA might also be seen as a new version of assimilationist policies of the late nineteenth and early twentieth centuries - policies designed to integrate Alaska Natives into the economic mainstream of society by reallocating common lands into individual shares.
By dividing the land into village and regional corporate holdings, ANCSA effectively divided Alaska Natives by planting the sees of a conflict within the Native community over the capital versus subsistence value of land. In one day, Natives who had been aboriginal owners of their land were required to apply for eligibility under ANCSA, select village lands and have them approved, and then wait to receive title. Approximately 20 percent of Native claims still have not been fully conveyed. The identity of Alaska Natives by cultural or kinship ties became secondary to the identity of Natives as shareholders.
For the most part, corporations selected lands for their economic value, not according to traditional social or political patterns. Driven by profit and growth, corporations control and for economic gain rather than for its value in subsistence. As they have struggled to make profits and raise dividends, particularly at the village level, corporations have gone into debt, mortgaged lands, and sold or leased resources, thereby exposing Native owners to possible bankruptcy and the loss of land. In making land an alienable asset, ANCSA has created tension and conflict that cuts across Native groups, urban and rural Natives, and generations.
The growing awareness among Alaska Natives over the possible impacts of continued corporate management led to widespread Native participation in securing the terms of the 1991 amendments, galvanizing the tribal movement and debates over status and rights today. The state's continued reluctance to protect Native subsistence claims has further frustrated Alaska natives, particularly as federal land withdrawals for conservation and the growing tourism and fishing industries continue to limit Native access to subsistence resources. In the face of these pressures, Alaska Natives have begun to develop tribal courts, strengthen tribal institutions, and assert their sovereign rights as tribes to take back control of land and resources at the village level.
Land: the Basis of Conflict and Culture
Many Alaska natives supported ANCSA as their best hope for a land claims settlement. ANCSA was designed to provide Alaska Natives with adequate resources to cope with change and compete in a capitalist society. One of the broad purposes of law is to provide for change and maintain adaptability (Wilkinson 1987: 75). In Indian policy, this would include allowing a tribe or group to adapt its culture or lifestyle to fit different values and changing times. The corporate model of ANCSA did just opposite. Native corporations were not formed in response to economic opportunity, as a means of economic adaptation, but instead were required by the law. Natives were forced to become stockholders and to adopt a view of the land as capital rather than the basis for culture and subsistence. In this regard, ANCSA does more to impose outside values on the traditional Native culture than to provide a basis for economic development.
ANCSA was an experiment, a new model for recognizing and resolving native land claims. Still, it leaves open the question of tribal status and rights of self-government. Many Indian tribes outside Alaska have developed tribal corporations as an arm of the tribal government to manage their natural resources for economic development. The mandatory creation of corporations under ANCSA works in reverse: the corporations and people who run them effectively control all Native lands and manage them for profit without the decision-making authority of government. By failing to recognize the importance of land to Native culture, subsistence activities, and village-based government, the settlement did very little to improve the well-being of individual Alaska Natives.
In fact, judging from the actions of the State of Alaskan and the Bureau of Indian Affairs (BIA), ANCSA has done more to undermine the status of Alaska Natives than to enhance it. Alaska Natives were recognized by the federal government under the IRA; they are eligible for human services and federal assistance just as reservation tribes in the lower 48. Before ANCSA, Native villages were the local unit of tribal government. The act extinguished aboriginal claims to land and subsistence hunting and fishing, but it did nothing to extinguish preexisting Native governments. Moreover, Alaska Natives have been recognized in at least four enactments of Indian legislation since ANCSA: the Indian Financing Act (1974), the Indian Self-Determination Act (1975), the Indian Health Care Improvement Act (1976), and the Indian child Welfare Act (1978). Despite this recognition of tribal status, the position in recent State Supreme Court decisions is that ANCSA implicitly extinguished the governmental status of Alaska Native tribes. The BIA similarly has confused the issue by updating its list of Federally Recognized Tribes Eligible to Receive Services from the United States to include not only all Alaskan Native villages, which are tribal entities, but also Native corporations and other nontribal entities.
Land has been the focus of cultural conflict between natives and non-natives throughout the history of US-Indian relations. The policies off the allotment era, most particularly the Dawes Act, were intended to do away with communally held tribal property, to open land for mineral and resource development, and to assimilate Indians into mainstream society. The policy was driven by an interest in Indian lands and in ending the separatist nature of the reservations. ANCSA has many elements of assimilationist policy at least insofar as it divides lands into individual units, makes land alienable and taxable (once it is developed), and threatens communal patterns of land use. The 1991 amendments to ANCSA avoided what could have been the ultimate alienation of land from Native ownership. Still, by focusing only on the promises of economic development, ANCSA ignores the social, political, and cultural values of the land to Alaska Natives.
The emerging tribal movement attests to the importance of the land to tribal culture and, indeed, survival. Reservations are often blamed for social and economic woes of Indian societies, and the dependency of the federal trust is often cited as an obstacle to tribal economic development and self-sufficiency. And yet what the reservation provides to tribes in the lower 48 is the security of a land and resource base for economic development, self-government, and protection of cultural differences. It is this sense of separatism and, ironically, security created by reservations and inherent in the concept of "Indian Country" that is missing in ANCSA - and hat Alaska Natives want restored.
1 The Department of the Interior did attempt to establish reservations in Alaska but ailed. Ironically, the only reservation tribe in Alaska today is the Metlakatla, natives of Canadian origin now living on an island near Ketchikan.
2 title 8 of the 1980 Alaskan National Interests Land Conservation Act (ANILCA) required a subsistence priority for "rural residents" on federal "public lands." The state was required to great the same priority on state and private lands. The state has challenged the constitutionality of this rural preference. The state's subsistence law was amended to give preference to rural residents, but was subsequently found unconstitutional by the State Supreme Court. On 1 July 1990 the federal government assumed responsibility for fish and wildlife management on all federal lands within the state until an acceptable solution to the conflict over the subsistence law is resolved. On the same date, the state assumed authority over state and Native lands.
1990 Breaking the Iron Bonds: Indian Control of Energy Development. Lawrence: University of kansas Press.
1985 Village Journey. New York: Hill and Wang.
1984 Alaska Natives and American Laws. Fairbanks: University of Alaska Press.
1987 American Indians, Time, and the Law. New Haven, CT: Yale University Press.
Article copyright Cultural Survival, Inc.