Abstract.Federal policy directed to settle Alaska Native land claims was shaped in a later time period and in a much different demographic, ecological, and economic context than earlier federal Indian Policy. This study begs the question why, despite these major differences, the two policy streams resulted in similar outcomes when analyzed at the macro level with national statistics. At the same time, significant cases of successful outcomes for Alaska Native and for American Indian Tribes of the Lower Forty-Eight challenge the hypothesis of similar outcomes. Alaska Natives and Lower-48 Tribes created unique and innovative programs in response to these policies. By changing the scope of policy analysis from broad aggregated statistical outcomes to a kaleidoscope of detailed cases we shift the analysis to ask questions about what kinds of indigenous responses to the general federal policy streams might be most effective. Many new questions arise. Would similar responses work for both Alaska Native and Lower 48 Tribes? Do distinctive differences in effective policy responses depend on specific factors? What kinds of indigenous policy initiatives break the mold and open the way to success and sustainability?
PART I - DIFFERENT TREES, SAME FRUIT?
Many would say that aligning the history of federal policy as it impacted Alaska Natives and the history of federal policy as it impacted indigenous peoples in the Lower Forty-Eight would be comparing apples to oranges. The two regions have drastically different demographic and bio-geographic landscapes and policy processes that are widely separated in time. Yet in the introduction to his book of Alaskan short stories, John Smelcer makes a striking observation when comparing the history and current context of the policy impacts on Alaska Natives and American Indians.
Alaska Natives do not live on reservations like “Lower-48” Indians (there’s one exception, but that’s another story). I would argue that...life on a reservation and life in a remote Alaska Native village are comparable: both are isolated, impoverished and heavily subsidized by government (Smelcer, 2011, p.19).
Smelcer raises an important question. Though the history and specific laws are different for the indigenous peoples of the two regions, how is it that the general negative outcomes appear so similar? Though federal policies may not be created with bad intent, the similarity of their negative outcomes is indeed striking. In looking for the root causes, it has been said that the massive impacts of sweeping legislation on cultures led to the failure of those cultures to adapt (Deloria, 2012).
Statistics tell the story. Census data shows that 27 percent of all Native Americans live in poverty (Williams, 2013), a larger proportion than any other group regardless of where they live in the United States.
Even in metropolitan areas like Tucson and Denver, American Indians have unemployment rates of about 30%--while Chicago, New York, Oklahoma City and Houston show only marginally better rates of 25%. These rates are as high as on some reservations (Williams, T., 2013). According to the 2011 American Community Survey prepared by the Census Bureau, the nation's population of American Indians and Alaska Natives, including those of more than one race, made up 1.6 percent of the total population (Census Bureau 2011). Of this total, about half identified as only American Indian and Alaska Native. The population of this group increased by 26.7 percent during this period compared with the overall population growth of 9.7 percent, holding the potential to reach two percent of the population by 2050 (Census Bureau 2011). The percentage of American Indians and Alaska Natives alone who lacked health insurance coverage in 2011 was 27.6%, while for the nation as a whole, the corresponding percentage was 15.1% (2011 Census Bureau ). The source of this and other relevant data comes from the 2011 American Community Survey completed by the Census Bureau: the data and measures of its accuracy are displayed in a variety of charts at
Table 1: Population (2012), Firm Ownership (2007) and Median Household Income (2011) in the past 12 Months: Comparing State and Tribal Rates for States with an AI/AN Population of More Than 100,0002
POP. % AI/AN
% FIRMS OWNED BY AI/AN
MEDIAN STATE HOUSEHOLD INCOME
AI/AN MEDIAN INCOME USA
Data drawn from US Census Bureau 2010 and 2011 American Community Surveys and Quick Facts at http://quickfacts.census.gov/qfd/states/html
The general trend of the statistics shows Alaska Natives and American Indians as a fast-growing segment of the population that continues to be impacted by disadvantages in economic success and healthcare.
THE ALASKAN CONTEXT
When the U.S. acquired Alaska from Russia in 1867 by purchase, the treaty conveyed dominion over the land and did not signify the lands used by “uncivilized” tribes as individual property. Russia had a system of serfdom at that time and lacked a tradition of rights for indigenous and rural peoples. In 1884 the Alaska Organic Act stated that Indians should not be disturbed in the possession of lands in their use and occupation, but it failed to clarify title. In 1906 the Alaska Native Allotment Act provided 160 acre homesteads on non-mineral land to Alaska Natives of full or mixed blood, over 21 and heads of household. These allotments were inalienable and nontaxable. The federal government saw Alaskan Natives as distinct from American Indians and did not apply the Dawes Act of 1887 in Alaska. It was not until 1932 that the Department of the Interior declared the Alaska Natives to have the same status as Indians in the rest of the U.S., entitled to the benefits and subject to the same laws and regulations ( Jones, 1991). In 1936, the Secretary of the Interior was authorized to designate “Indian Reservations” in Alaska, but they were later interpreted as “temporary withdrawals,” unlike the permanent reservations in the Lower 48. The passage of the Alaska Statehood Act of 1958 brought further confusion. The State of Alaska gained the right to select 103 million acres from the public domain. Native lands were exempt, but as might be expected, the State moved quickly to grab lands Native or not if they were valuable, and to claim royalties to the federal oil and gas leases therein.
Alaska Natives protested increasing encroachments on non-native lands throughout the territorial period. The Alaska Native Brotherhood that formed in 1912, and later the Alaska Native Sisterhood, represented mainly Tlingit, Haida and Tsimishian from places in Southeast Alaska where they had mastered English through the Presbyterian missions (Williams, M, S. T., 2009). Early on the first Alaska Native attorney, began pressing for the inherent rights of ownership of the lands for Alaska Natives. He brought suit against the government. Although the suit did not win any monetary awards, it did establish the existence of a native right and that was critical to further legislation that recognized the native land claim.
Edward Teller’s “Project Chariot” would have placed an Atomic Energy Commission nuclear facility with planned denotations on a withdrawal of sixteen hundred square miles of land and water in the Cape Thompson area that was claimed by the Inupiat. In the face of that, they began to organize politically at a 1961 conference in Barrow (Williams, M, S. T., 2009). Finally, the discovery of the Prudhoe Bay oil fields prompted Alaska Native leader Emile Notti to call for a statewide meeting to discuss the issue of land claims in July 1966. At that meeting the Alaska Federation of Native Association was born with Notti at the helm and William Hensley providing a detailed legal study indicating Alaska Native claims were never extinguished. In a short period of the 1960s, Alaska Native solidarity paved the way for a settlement and turned the tide of negative identity and racism around (Williams, S. T., 2009). They pushed hard for a land freeze on federal land transfers to the State of Alaska until land claims were resolved. The timing was good, because a land freeze would halt the construction of the Alaskan Pipeline. Secretary of the Interior Stewart Udall heard them and met the challenge of the State’s land grab by ordering the lease sale on the North Slope stopped. Under Udall’s “Deep Freeze” the disposition of all of the federal lands was frozen.
In the context of pressure to lift the virtual freeze on access to additional petroleum resources, Congress passed ANCSA, the Alaska Native Claims Settlement Act in 1971, a law that greatly reduced the size of native homelands. In exchange, Alaska Natives could withdraw 44 million acres of federal land and receive almost a billion dollars from the government. The Alaska Federation of Natives lobbied hard to gain some advantages in the sweeping legislation. It was not what exactly what they wanted, but they knew it was the best they could get. The State of Alaska remained dead-set against the establishment of “Indian Country” reservation lands in Alaska. At this time, Alaska Natives gave up massive amounts of land and their subsistence rights were excluded from the new policies. In Alaska, the Act set forth a framework to recognize around 1/9 of Alaska’s total land mass as Alaska Natives’ title. One Alaska Native, Barrow Activist Charlie Edwardsen Jr., once referred to ANCSA as “a new harpoon” (McPherson, 1982, PT10, p.2). Edna Maclean, an Inupiaq linguist compared the native corporation concept to a whale where “like for instance (ninq) in the traditional sense means an equal share of the animal. Now we extend the meaning to stocks in the corporations…..shares in the corporation are not truly equal due to the power of the Umialik, the Captain, the corporate officers “ (MacPherson, 1982, Part 10).
Much was left undone by the Act and it had significant structural flaws. What was to be the nature of the trust relationship between the federal government and Alaska Natives? Had the State of Alaska succeeded in its vociferous attempt to abolish the concept of Indian Country? When would the land conveyances be complete? Does ANCSA’s jurisdiction include the outer continental shelf? Seven villages opted out of ANCSA because they would lose the land base previously granted in the 1940’s through the Indian Reorganization Act of 1939 (IRA). The losses would have been great if they had joined with ANCSA. For example, Arctic Village, which already had 1.8 million acres of land and an approved IRA government and land base, could have been reduced to little more than 161,000 acres as a village corporation. For all of these reasons, McCarrey suggests that ANCSA should be “read narrowly and not as divesting Alaska Native Tribes’ inherent power to self-govern as it did not invalidate any other federal legislation that treated Alaska Native Tribes as possessing the ability to exercise self-governance as in the Indian Reorganization Act “(McCarrey, 2013, p. 447).
Twenty years later, Alaska Natives were custodians and caretakers of only about half the expected land. A survey was required before land could be transferred: this requirement alone, considering the vast areas that were often inaccessible, caused delay. Meanwhile, the State and other entities grabbed up land. The law created 12 regional Native Corporations that absorbed governance functions over a good portion of the land and its resources, especially subsurface rights. Some Native Villages were also allowed to incorporate as village corporations under the laws of the State of Alaska. The Native Villages would have authority over the surface estate only in approximately 22 million acres of land in the township areas surrounding the villages and some additional areas to be divided by the Regional Corporations. The Regional Corporations got the subsurface estate in those 22 million village acres and full title to 16 million acres surrounding the villages. Two million acres were to be conveyed for specific purposes, and the final two million or whatever was left, were to be conveyed to the Corporations. A thirteenth Regional Corporation was created in 1975 located in Seattle Washington for Alaska Natives living in the Lower 48. The shareholders of this Regional Corporation were given no land claim.
In effect, ANCSA set up parallel governments. The corporations had title to resources. Each had to organize as a profit or nonprofit corporation under state law before receiving the lands and benefits promised. Regions organized as larger corporations. The seven Native Villages who opted out of ANCSA held rights to self-governance and insisted on a larger share of governance over their lands and resources. Other villages were charted as village corporations, while the twelve regional corporations kept much of the political, economic and natural resource clout through control of lands and important mineral rights. A fourth governance system, the federal Bureau of Indian Affairs and the Indian Health Service, played the major governmental role of service delivery just as they always had. Despite the fact that some claimed the new law would make Alaska Natives rich, educational, economic and technological isolation continued and many remained impoverished. The lack of subsistence rights during this period led to further government domination through subsidized food, healthcare, housing and water.
Two hundred and twenty seven Alaska Native governance systems are federally recognized through Public Law No. 103-454 1994 and the villages receive most of the services provided to the Lower Forty-Eight tribes by the federal government. The Self-Determination and Education Act of 1975 recognizes both Tribes and Alaska Native governmental systems and they may all contract with the BIA to deliver the services themselves. Under the Self-Governance Act, they also obtained the right to compact with the federal government. In a nutshell, Congress replaced some of the means to independence with others, but left the reins for basic needs and services in the hands of the BIA, while devolving the responsibility for subsistence to the state and managers of federal lands. Summing it up, Reverend Merculieff from St. George Island stated: “leaders involved in the fight for a settlement generally agree that, given the times, the bill is as good a solution to the land claims problem as could be negotiated” (McPherson, 1982 Program 2).
William Hensley, one of those leaders in the settlement fight, wistfully recalls:
In the end, you have to understand the times you live in and the mentality of those whose decisions affect you…But they never really understood us, and abetted by the federal government, they made decisions that should have been made by our own people, using their power to oppress our ability to govern ourselves. Our parents and grandparents acquiesced in all this, and “gave” us to the system in the belief that they were offering us a better life. What they didn’t understand was that it was possible to retain our souls, our identity, our culture, and still pick up enough of the Western ways to flourish in the new order. …Now we had a new way to look at our continuing struggle. It wasn’t enough to claim our lands, we had to claim our way of thinking, acting and living…. The stronger our identity and spirit, the stronger the likelihood that we will keep our land for future generations (Hensley, 2009, pp. 222-223).
THE ALASKAN DIRTY DOZEN: TWELVE WAYS TO SEIZE THE NATIVE HOMELANDS
As history tells us, the dominant political and economic forces of the federal government led to land settlements where indigenous peoples gave up massive tracts of land in exchange for cash settlements and smaller land bases. ANCSA recognized around 1/9 of Alaska’s total land mass as Alaska Native title. Ten years later, the twelve Native Corporations held but 16 million of the 44 million acre promised under a complex provision under the Act called the “Land Loss Formula” (McPherson, Pt. 2, p. 1). Distributions were lop-sided. The Arctic Slope had a small population, but claimed a little over 4 million acres with ownership of surface and subsurface estates included. The shareholders of the 13th regional corporation located in Washington State set up for Alaska Natives in the lower 48 received cash settlements but had no land claim. Complications and survey requirements delayed the re-transfer back to native communities. Twenty years later Alaska Natives were custodians and caretakers of only about half the expected land. The real point of ANCSA was to extinguish the aboriginal title to the remainder of the lands by placing such lands in the public domain, and to pay the “fair value” for the extinguished title even though the natural resource wealth was little known in many areas.
Similarly, convenient ways to limit the native land base guaranteed by treaties in the Lower 48 were created such as the Indian Claims Commission Act of 1946. From the mid 1940’s to the mid-1960’s the federal government pursued a policy of “terminating” Lower 48 Tribes. Under this policy, some lost sovereignty, federal recognition and benefits, while lands and tribal citizens became subject to state laws. Conveniently, many of the “terminated” Tribes had valuable natural resources like the Menominee and the Northwest tribes. The policy was a disaster and it took tribes many years to undo some of the harm. The Johnson and Nixon administrations took steps to end termination. In addition, they recognized that the major failure was really in the BIA mismanagement and failed delivery of services by the government bureaucracy. By the time they began to work on legislation for Alaska, the policy work behind Self-Determination Act was well underway and it was going to apply to Alaskan Natives too.
The process of dealing with native land claims would take much longer to play out in Alaska. Overall, it was a law that was actually a real estate settlement to assure Alaska Natives would give up the massive tracts of land. It drew heavily on the older Osage model of “head rights,” for oil revenues, called “shares” under ANCSA, though they were never publicly traded. On one side, it was touted as a new model for Native Peoples: on the other hand, it gave the government an easier hand over valuable natural resources by limiting the number of shareholders and reducing that number over time. The policy framework left by ANCSA created a land distribution process so muddied that ANILCA (Alaska National Interest Land Conservation Act) had to be passed in 1980. Alaska Native leaders worked hard to get ANILCA and many amendments to redress some of the structural flaws of ANCSA. Since its inception, every Congress has made amendments.
ANCSA, ANILCA and Alaska Statehood legislation all showed the effects of special interests. Bureaucratic rules delayed and complicated the re-transfer back to native communities. In the meantime, the State of Alaska continued to withdraw lands for development. Some of the withdrawals were essential to Alaska Native culture and livelihood. From the beginning, North Slope Villages felt the ANCSA settlement was not a just exchange for claims to the land their ancestors had occupied for time immemorial (McNabb 1982). ANCSA was forced into being after 1968 when a pipeline needed to be built and ARCO announced a significant oil discovery on the North Slope on land traditionally used by the Inupiaq Eskimos. One of the most enduring environmental conflicts of the century occurred around the Arctic National Wildlife Refuge. Laws created the Refuge, but underlying provisions left Congress the option to allow petroleum mining activities if there was “no impact.” The Refuge is critical to the Porcupine Caribou herd, upon which the local native village depends. The term “no impact” became the ironic rubber stamp for various attempts to legislate permission to mine despite obvious impacts to the herd and essential calving grounds.
In 1980, ANILCA allowed for the withdrawal of 100 million acres of land and divided them up with various federal land agencies. USDA Forest Service areas began an aggressive timber program once federal lands could be withdrawn and complex relations with federal agencies developed. Special interests were especially noted on the Section 1002 lands on the North Slope. Though seemingly protected through the Arctic National Wildlife Refuge and adjoining areas, legislation called for “special studies” of impacts that threatened to open up these lands to oil exploration and production. Bureaucratic pressure to suppress science was demonstrated when the USGS scientist who revealed the calving area for the caribou was fired. Native Corporations also instituted extractive programs. ANCSA and ANILCA’s implementation was influenced by private interests—gold, oil, mineral and fishing interests. The President of the Arctic Slope Native Association proclaimed: “The Congress is making its settlement for just one reason. Because the oil of the North Slope is owned by the Inupiat Eskimos of the Arctic Slope. As it turns out, the pressure of the pipeline simply has required the Congress to move” ( McNabb, 1982, Pt I, p.2).
The series of new laws and institutions alienated and fragmented lands where governance was once accomplished in common. The institution of Regional Corporations split governance and lands between the Corporations and the Villages. Originally ANCSA allowed that after 1991, pending a majority vote of the shareholders of a Regional Corporation, the shares could be sold. But as Sam Kito, past president of the Alaska Federation of Natives, pointed out: “if they sell the stock, they sell the land, and they receive money. But land is the legacy and .... we would like to find ways for them not to sell stock” (McPherson, Pt 10). Some adjustment had to be made. Within ANILCA, the D2 part of the legislation gave the corporation the first right of refusal in such shares. At least the Corporation itself could buy back shares, preventing ownership by non-natives. The Alaska Native Allotment Act, passed in 1906 was an earlier form of land distribution that divided land into 160 acre parcels owned by the head of the household. It was similar to the Dawes Act, but unlike Dawes, it held the land exempt from state taxes. This important exemption was repealed by ANCSA, but it did allow for the processing of any existing applications. Originally the Act made the lands alienable and subject to state tax in twenty years just like the Dawes Act did for the Lower 48. Long-term negotiations, lobbying and Native solidarity were required to eventually gain amendments that made the land inalienable and not subject to state taxes so it would remain in the hands of Alaska Natives.
Components of ANCSA restricted Native rights to use their lands in various ways and virtually extinguished the subsistence rights of Alaska Natives. ANCSA provided no guarantee of subsistence rights, although many village residents still had a subsistence lifestyle—hunting, fishing and gathering wild plants for food, This created a gap between the corporations that promoted industrialized resource extraction to meet corporate goals versus the needs and desires of village citizens who depended on subsistence.
Problems arose again in 2005 for the Gwich-in communities that live on or near the Arctic National Wildlife Refuge and the Yukon Flats National Wildlife Refuge. The land exchange agreement arranged between the Doyon Corporation and the federal government involving Yukon Flats was not acceptable to village governments like Yukon Flats and Venetie Village who were not consulted (Banjeree, 2012). The exchange would have opened up 200,000 acres under refuge protection to oil and gas development. The Gwich-in organized and Chief Dacho Alexander and others spoke eloquently against the exchange. In the end, in a rare moment in Native history, the US Fish and Wildlife was persuaded by the Gwich-in during the National Environmental Act process and decided on the no-action alternative in 2009. They would not proceed with the exchange.
Another concern was the trend toward urbanization among shareholders. In over half the regions, 25% or more of the shareholders now reside outside of Alaska. Their interests may reach a level of incompatibility with the village resident shareholders, who continue to depend largely on subsistence and their cultural life ways.
The passage of ANILCA in 1980 mitigated the subsistence problem to some extent: subsistence rights for Native and non-native rural residents received a federal guarantee of rights through the Act. However, this required the federal government to oversee the Alaska State Board of Fisheries and Game in order to assure there were no inappropriate restrictions. The State fought this oversight until 1986, when Alaska finally wrote laws to comply with ANILCA. This was further challenged in court on the grounds it violated the Alaska Constitution. This placed federal agencies in limbo until 1990 after more court battles, when the federal government announced its authority for full control over wildlife resources and subsistence on federal lands. From then on, federal agencies managed subsistence rights rather than the State of Alaska. ANILCA gave the various federal agencies vast tracts of land and they restricted native uses in line with the various management policies and missions of various federal agencies. Earlier, ANCSA, by ignoring the rights of subsistence hunting and fishing and limiting access to food sources, weakened native resistance and increased dependence on government subsidy. Even when ANILCA restored some of those rights in places where subsistence and access were once free to native peoples, the federal agency restrictions kicked in.
An especially complicated land conveyance process built confusion into laws and regulations. Land conveyance was delayed by claims and counter claims, high expenses, and delays in surveys. Previously, the Department of the Interior had authority to withdraw other lands for ANCSA if competing claims and litigation made it impossible to give the land to the Alaska Natives. By 1992, 10.6 million acres were conveyed with patent, meaning that final title was given after the survey. Meanwhile, 25.1 million acres were in interim conveyance status, meaning they weren’t surveyed and patent could be reversed while “34.9 million acres had not been conveyed in any form” (McNabb, 1992, p.3).
Alaska Natives could make withdrawals from federal lands: ANILCA set up 80 million acres in Alaska to be withdrawn for wildlife refuges, national parks, national forests, and wild and scenic rivers. Many special provisions and restrictions were placed on these lands to limit withdrawals for Alaska Natives. In another instance, millions of acres were withdrawn for national monuments, also with special limitations for the Alaska Native withdrawals. The numerous competing claims generated by ANCSA and ANILCA led to pages of rules and conflicting claims. Everything led to the desk of the Secretary of the Interior as the primary adjudicator. A better prescription for delay could not have been designed.
Further, the State won cases against Alaska Natives and fought the rights of tribal governance under the theory of “Indian Country.” In Alaska v. Native Village of Venetie, 1998, the State asserted that the Native Village lacked the power to tax. Venetie had attempted to tax a construction contractor working on their lands. The state legislature bankrolled the fight for a million dollars and organized a fusillade of arguments against tribal sovereignty from 20 other states (Kizzia, 1997). Although Venetie won the round in federal appeals court, the Supreme Court eventually sided with the State. Besides losing the authority to tax, one of the basic powers of government, the Venetie decision turned on whether or not village tribal lands were “Indian Country.” In the post-Ventie period, even the lands of villages that opted out of ANSCA would be legally interpreted as ANCSA lands without the designation of “Indian Country.” In this decision, the State also achieved its goal of reducing village authority over non-members. This decision could be construed to limit other powers of village and corporate governance in various civil and criminal cases. The Alaska Supreme Court, in contrast, affirmed at least some village authorities in the post-Venetie period in John v. Baker (McCarrey, 2013) .
The structural problems of ANCSA and ANILCA led to delays and confusion. Originally the right to use and live on the land was further muddled by complicated and confusing membership requirements. In the case of ANCSA, a generational system of shareholders was set up. If shareholders who the government identified as residents of native areas were born before December 18, 1971, the date the Act was signed, they would be issued their shares after enrolling. “But those who did not enrolled or who were born after those dates were not eligible to receive stock except through inheritance. In many families siblings have split, some receiving money and land and others not,” stated former president of the Alaska Federation of Natives and SEALASKA board member Rodger Lang (McPherson, Pt 10, p. 3). The Department of the Interior managed the enrollment process, showing the region or village in which a person resided on the date of the 1970 census enumeration or in the case of changing residence, a region of birth, of 10 years residence, or in a region from which an ancestor came. Knowing the inaccuracies of census-taking of native peoples in the more accessible Lower-48, one can only imagine the accuracy of these rolls. Despite amendments and improvements in the distribution of shares, it was estimated that by 2012 only about half of Alaska Natives held shares (Case and Voluck , 2012).
Originally the settlement recognized the claim of Alaska Native tribal entities over large areas of land. ANCSA required the establishment of Regional Native Corporations that would make the resource extraction decisions and operate like corporations. The corporations made decisions about the land and its resources, yet some Native village governments still existed. The Act originally allowed only those living members to receive shares, disenfranchising future generations of Alaska Natives. Alienation or sale of shares in Native Corporations was to open in 1991, allowing the shares to go out of the communities. The Alaska Federation of Natives met and continued to press for changes. They achieved some improvements in the 1987 amendments that did away with automatic alienation of stock. The deadline for alienation was extended beyond 1991 as were tax exemptions on undeveloped ANCSA lands and sale of shares and expenses that could occur only with a majority vote of shareholders (Morehouse, 1988). Even with this improvement, corporations were a new idea in the realm of federal and Native relations and would require much more work and structural change for effective implementation.
The idea of private property as expressed through the new Native corporations was also new to Alaska Natives. Court claims, counter-claims and litigation from the complex mechanisms of the land conveyance system resulted in expense and delays. ANCSA itself was an enormous example of social-engineering. Meanwhile, other interests were moving in on the lands, creating further difficulties for conveyance. Natives were faced with competing and incompatible uses of their land and selection was difficult since little was known about its development value (McNabb, S. , 1992). ANCSA left the determination of whether corporation lands were “Indian Country” “where federal and tribal rather than state jurisdiction extends” and where tribal governments can tax, regulate non-native affairs and land use, and make laws while holding onto sovereign immunity (Carpenter, 1999) . After Alaska v. Venetie reached the Supreme Court in 1997, a powerful blow to the powers of the village governments was dealt. Few of the powers of democratic governance were left standing.
The structure of the Regional Corporations led to artificial isolation from market forces. Their financial structure was unlike that of a regular corporation who could sell shares on the stock exchange. Instead, they were held by members. This led to borrowing against assets to get capital or to funneling in money from government sources. Large cash settlements for land did not necessarily lead to good investment strategies either.
The government subsidized the corporations. They did not have to raise capital. Nor were they directly subject to market forces and the information that it brings. As a result, some of their investment choices were more risky and they tended to invest in diverse businesses creating industrial conglomerates that were difficult to manage. In the post-1980 period nearly half of them lost money (McNabb, p.3). Many invested in Alaskan enterprises, a state particularly subject to economic downturns. Corporations usually raise money by borrowing money or by selling shares. Running a corporation required skills and resources that many Native Corporations did not possess at the outset. The Alaska Native Corporation model made selling shares problematic, and so they tended to go into debt with loans. Some were able to balance the books by selling their net operating losses to other corporations but the IRS stopped that and took over half the proceeds into escrow pending their approval (McNabb, p.4).
Indigenous communities were often isolated from economic and technological advances and across the region considerable inequality existed. ANCSA never addressed Native rights to normal infrastructure that was basic to economic development. Although the Arctic Slope Corporation was making money from its oil leases, only half of the Native population felt that it brought good effects and jobs. Most of Arctic Slope Corporation’s millions of dollars in investments were oil related and development directed.
The 13 Regional Corporations were unequal in wealth, resources and degree of isolation. The division of Alaska Natives into 13 Regional Corporations created new arenas of competition and inequality. ANCSA included a controversial revenue sharing provision 7 (1) that required 70% of all revenues derived from timber or subsurface resource development to be shared among the 12 in-state ANCSA Corporations. However, losses were not shared and losers stood alone. This was intended to be an equalizer between the regions with richer resources and those with less. The result was all twelve native corporations sued each other. The oil-rich Arctic Slope Regional Corporation almost doubled its wealth reaching $24.3 million by 1980 for a membership of 4,000 shareholders. Most of the land was leased to American oil corporations. Unable to select lands from within the National Petroleum Reserve on the North Slope, the Native Corporation had to gain the right through yet another amendment to go back into the Reserve once it is opened for lease sales. Ten years after President Nixon signed the ANCSA, one Alaska Native Corporation made the Fortune 1000, another teetered on bankruptcy and one group of merged village corporations made a million dollars, while their parent regional corporation lost several times that amount (Whale, Pt 10, p. 2).
Years into the implementation of ANCSA, William Hensley made these remarks:
For fifteen years we had focused almost exclusively on trying to win back the land, setting up our regional corporations to implement the land settlement, and doing everything we could to elevate our people from their dire economic circumstances. We built warmer homes. We installed electricity and safe water systems, we improved sanitary conditions. We pushed for clinics and village schools and for projects that could bring incomes to local workers. In short, we had been trying to accomplish in a single generation the monumental task of uplifting an entire people from poverty and involving them in the making of laws and policies that affected all aspect of their lives…..I realized with dreadful clarity that all the political and economic activity of the past fifteen years had not really brought better lives for our people. Sure we were not starving or freezing the way we used to and our health care facilities were improving. But there was a yawning pit out there, and in spite of our best efforts, we were sliding downhill, straight into it. We were becoming alcoholic or violent committing suicide, neglecting children, beating wives, and going to jail in greater numbers than ever before (Hensley, 2009, p. 201-202).
The range of educational opportunities was restricted. Though the Tribal College Act of 1978 could provide local institutions of learning, only one tribal college exists in all of Alaska. Lack of funding, access, and relevant curriculum plagued educational efforts at all levels.
Inadequate health care impacted remote villages. Special problems of transportation and access were clearly present, but little resolution ensued. Health services were not mentioned in ANCSA. Coordination with different federal agencies was lacking. Healthcare was not in the original treaty with Russia, and as things developed health care moved between the BIA and the IHS. Access and distance contributed to the failure to deliver and medical technology was often not available even for the most routine tests.
Last, the roles of the state, the Native Corporations, and federal government were poorly defined. The State rarely acted in the interest of Alaska Natives, and the federal government only haltingly moved in to provide protection and access to subsistence and other critical needs. Often state court cases delayed decisions and extended time periods when roles were unclear. Although ANCSA was designed so Alaska Natives would not be “wards of the government” (Wooch Yayyi, 2007), in fact, many villages remained so and they received basic services from the BIA. Sherri Buretta, President of the ANCSA Regional Corporation Presidents and CEOS discussed the many unmet needs for plumbing and transportation, and the poor health and lack of education among Alaska Natives. She noted that corporations never really replaced or made up for the failure of the government to meet its trust responsibility: “The role of the corporation in remedying these lingering problems is often misunderstood. Alaska Natives are citizens of Alaska and the United States, and the government has the primary role to create and maintain infrastructure, educate its citizens and fund and create programs to address the needs of its citizens” (Wooch Yayyi, 2007).
THE DIRTY DOZEN: Federal Indian Policy in Alaska
A government with greater economic and political centers of power forces land settlements that exchanges cash for land and begins a grand project of social-engineering that favors state interests over tribal interests. Examples: Treaty with Russia, ANSCA
The dominant government institutes extractive natural resource programs without regard to impacts on Alaska Natives. Examples: ANSCA, USDA Forest Service (especially Sustained Yield policies), Alaska Statehood, North Slope mineral and pipeline programs
Special private economic interests shape policy, obtaining in holdings and rights for resource extraction and other uses on Native land claims
Examples: ANCSA limits Alaska Native Village mineral rights, delays land withdrawals. Attempts at development on ANILCA Section 1002 lands and Arctic National Wildlife Refuge
Federal and state entities developed policies and regulations that alienate and fragment Native Alaska Lands that were originally held in common.
Examples: ANCSA, individual allotment policies and Alaska State land claims
5.Restrict the rights of Alaska Natives to use their lands and resources
Example: ANCSA resulted in restriction and elimination of subsistence hunting and fishing rights
Structural problems that connected the right to use and live on the land to complicated/confusing membership requirements, created a set-up not tied to market forces. Example: ANCSA set up a uni-generational system of shareholders based on birthdates and local residence
Court cases stemmed from a complex land conveyance process that instituted a new system of private properties under bureaucratic rules and built confusion into bureaucratic regulations
Example: ANCSA land withdrawal system with completing claims and survey requirements imposed private property system when knowledge of location of valuable resources was lacking. ANILCA and state withdrawals add to further overlap and confusion
Insulated Alaska Natives/American Indians from market influences in terms of investment choices by providing capital through government channels with various restrictions. Examples: Regional Corporations limit stock exchange and incur debt instead: government subsidies required. Limited and restrictive economic development programs
Isolated indigenous communities from infrastructure and technological advances.
Examples: ANCSA never addressed economic development, but only assumed the corporation model would work as an economic and a partial governance system in Alaska. Regional corporations were not tied to infrastructure needs of Native villages.
Failed to provide Alaska Natives with a full range of educational opportunities
Example: ANCSA never addressed native rights to education and related services.
Alaska only received one tribal college.
Failed to provide a program of health services that establishes a comparable standard of health care. Example: ANCSA leaves out health services: government provided health services moved between government bureaus with poor coordination and delivery of services.
Federal and state roles in relation to Alaska Natives are neither clarified nor codified.
Examples: ANCSA, ANILCA and Statehood legislation confused and delayed withdrawals. ANILCA finally clarified federal responsibility for Native subsistence
FEDERAL POLICY AND AMERICAN INDIANS IN THE LOWER 48
From early contacts, British, French and Spanish colonizers recognized the rights of the indigenous peoples of the Lower 48 through treaties. The motivation for treaty-making was primarily for military and trade objectives, and later for land settlement. At the same time the courts established an interpretation that the United States Congress, when they perceive that tribal sovereignty is inconsistent with national or state interests, may limit that sovereignty. The treaties were mainly transactions of land from Tribes to the U.S. in exchange for money, services, and economic, educational and agricultural supports. The federal government decided to hold in trust money from the sale of lands, and monies from leases and other extractive uses of Indian lands rather than direct payment to the beneficiaries. In 1871 Congress passed a law that ended the treaty-making period with Indian Tribes. At the same time, the law provided that existing treaties was not to be invalidated or impaired, though Congress might, and in some circumstances, did abrogate them.
Federal Indian policy was shaped by various private interests in the Lower 48 just as ANCSA was influenced by oil, mineral and fishing interests. The Lower 48 had all the same special interests and added a few more like agricultural and ranching interests and water for development. If treaties weren’t abrogated, means were found to obtain private in- holdings, leases, and rights for resource extraction on Indian lands. The period from 1871 to 1934 might be called the Allotment and Assimilation Era. This era of unilateral federal policy assumed the eventual disappearance of tribes, whether by assimilation or other means. The view that Indians were heathen-wards, who had to be assimilated, or, more drastically, removed, eliminated or contained as prisoners of war continued as the underlying justification for removing Indians from their homelands and reservations.
The Dawes Act of 1888 transferred enormous tracts of reservation acreage to non-Indian settlers as surplus land. It turned trust lands into allotments that were transformed into private property subject to state tax in 25 years. This new system subjected Indians to state laws: they would find no protection for their homelands or their traditional governance and legal systems, and they would owe the state taxes. The federal government expanded the scope of its power over tribes, while receding from its obligations. Policy experiments applied to Tribes whenever a new objective appeared: the Osage Nation was governed under regulations that denied citizen participation to a large number of members and the imposed concept of head rights to oil resources consolidated benefits into a small number of individuals and limited inheritance.
By contracting with missions or forcing Indian children into boarding schools far from home, or taking over local day-schools, the school became an instrument of cultural suppression. The schools were rigid and regimented and the focus was on technical and vocational training, often pointed toward domestic employment, especially for girls.
A “New Deal” Period from the 1920’s and 1930’s overlapped the end of the Allotment Era. By the 1920’s federal policy was evolving toward the idea of putting Indian children in state public schools. Again, the government was receding from its treaty obligations and advancing the idea of assimilation. At the same time, the failure of past federal Indian law and policy was becoming apparent. Tribes were not disappearing into the melting pot or into the air and federal expenses continued to rise, while the tribes sank deeper into poverty. The Indian Reorganization Act halted the allotment policies of the Dawes Act and mitigated forced assimilation, while supporting some capacity for tribal governments, economies and education (McCoy, 2005). Tribes could choose to come under the IRA and accept a type of template government that at best provided a degree of self-governance. It provides some degree of self-determination. At worst, it fragmented traditional systems of governance. The Johnson O’Malley Act of 1934 added further health education and welfare components. The government could contract with states, private entities, and Indian tribes for services the government once directly provided. These laws helped break down the ill-fitting uniform policies and regimentation of the previous system to some extent.
The Termination Era of the 1940’s and 1950’s was spurred by backlash from the usual anti-Indian interests including assimilationists and businesses interested in profiting from the resources and lands of the tribes. Congress choked off Bureau of Indian Affairs appropriations. Public Law 280 transferred jurisdiction over many civil and criminal matters occurring on Indian lands to the states. Other laws weakened tribal control over lands and natural resources. Federal pressure was applied to fully terminate some tribes. The Indian Claims Commission Act of 1946 refined the process of trying to offer sums of money as legal tender for huge tracts of land promised in treaties. As the federal policy wagon rounded the bend to the 21st century, its wide swings led to the general depletion of responsibility, unresolved problems, and failed initiatives cut off at the knees.
The federal policies emanating from the 1960’s, 70’s and 80’s recognized the failure of termination era policies. The Self-Determination Act and its amendments supported a greater degree of tribal governance by allowing Tribes to contract with the federal government to deliver services. Self-governance further emphasized tribal control over budgets and funding to shape their own policies, services and regulations to suit their needs. Tribes found a way into President Johnson’s Great Society programs and received some social and economic program support. At last Indian Tribes were included as units among the local governments as eligible for grants. The landmark 1965 Elementary and Secondary Education Act of 1965 established programs for economically disadvantaged children. In 1965, the Head Start program began and reached out to reservations. The Indian Education Act of 1972 set up grants and special adult education opportunities. The Tribal Controlled Community College Act of 1988, based on the trust obligation of the United States, authorized the Secretary of the Interior to make grants for tribal colleges. Underfunding continued to challenge all of these institutions. Here, as in Alaska, amendments to earlier laws continued to improve tribal capacity by degrees. The Tribal gaming Act laid out a framework for Indian casinos that led to increased cash flow and economic diversification for the Lower 48 Tribes.
Although the Indian Claims Commission, set up in 1946, adjudicated Indian claims of tribes against the government and paid out millions of dollars for Indian lands, only monetary compensation was possible and some tribes refused it. Individual trust accounts were also mismanaged by the BIA: tribes used the courts and monumental delays followed. After years of bitter battle in the courts with the Cobell case, the government finally acceded to settlement proposals: by 2012, 27 of the 52 of the Native American Rights Fund tribal trust cases were settled.
The Cobell Case brought the extraordinary degree of government mismanagement of Indian tribal trust accounts to light. The government often decided to hold the monies it paid tribes for land or monies derived from the leases and other extractive uses of tribal lands rather than direct payments. Payments were never made on the often under-priced leases of Indian resources and lands, and sometimes never even collected. The system of payments to individual Indian landowners was equally perplexing in its failure to work.
Unlike Alaska, where 160 acre homesteads were allotted to Alaska Natives who at the time had no clear title, allotment under Dawes or General Allotment Act in the Lower 48 was accomplished by breaking up existing reservations previously established by treaty. Reservations were fragmented into individually owned tracts of land or lands were allotted to those who did not live on reservations. Dawes gave the head of a family 80 acres of agricultural land or 160 acres of grazing land. Single persons or orphans got half of that share. The federal government retained title of the allotted lands until the expiration of a trust period of twenty-five years or longer. At that time the allottee secured a patent in fee— and that made it private property. The land could be sold and was subject to the laws and taxes of the state or territory. Citizenship was granted to every allottee.
THE DIRTY DOZEN IN THE LOWER 48: TWELVE WAYS TO SEIZE THE HOMELANDS
A government with greater economic and political centers of power forces land settlements that exchanges cash for land.
Examples: Treaties with tribes in the West, or the Treaty of Guadalupe Hidalgo with Mexico that recognizes Pueblo Indian grants, but leaves out larger tribes in SW
The dominant government institutes extractive natural resource programs without regard to impacts on Tribes. Examples: USDA Forest Service absorbs huge areas of native claims and continued to do so through the termination policies of the 1950s. Sustained Yield and Multiple Use policies exclude tribal uses. Statehood Acts, energy and minerals development, BIA leasing all move benefits out of tribal arena
Special private economic interests shape policy, obtaining in-holdings and rights for settlement and resource extraction on Native lands. Gold, oil, mining, cattle-ranching fishing and agricultural interests have primary influence in shaping policy to obtain private holdings, leases and rights for resource extraction in Indian Country. Examples: Dawes Act, Forest Service laws and policies, Bureau of Land Management, Homestead Act, the Mining Act, the Crownpoint Uranium Mine on Navajo Reservation
Develop policies and regulations that alienate and fragment Native lands originally held in common. Examples: Dawes Act, land exchanges, abrogation of treaties
5. Restrict the rights of tribes to use their lands and resources for subsistence and trade. Examples: Large-scale killing of bison on the plains during treaty-making period, National Environmental Policy Act, hunting and fishing rights restricted by states without federal intervention, restrictions on whaling, state restrictions
6. Connect the right to use and live on the land to complicated/confusing membership requirements. Examples: BIA enrollment policies and blood quantum system spurred by Dawes Act. Osage head-rights system instituted by BIA as a way to manage oil rights
7. Create a complex land conveyance and payment processes under bureaucratic rules that will lead to long delays for compensation of individual Indians. Confusion built into laws and regulations
Examples: Cobell case, BIA mismanagement of tribal trust resources, allotments and leases, allowing States increasing influence on Indian lands
8. Insulate American Indians from market influences in terms of investment choices by providing capital through government channels
Examples: government subsidized ‘one size fits all” economic development programs, allowing state increasing powers to regulate and ask for shares of tribal profits
9. Isolate indigenous communities from economic and technological advances.
Examples: lack of infrastructure for business prevalent in many areas, failure of BIA roads system severe underfunding for infrastructure and technology. Policies not tailored to extremely varied contexts: some tribes are remote, others are in urban settings.
10. Fail to provide Natives with a full range of educational opportunities
Example: Although Congress continued to pass legislation for Native American education complicated grants, severe underfunding and the attempt to implement uniform policy to the various contexts for Indian Education (in public, BIA, missions, residential, local and tribally-operated institutions) gave poor results.
Fail to provide a program of health services that establishes a comparable standard of health care and move the providing unit back and forth between departments
Examples: Health services move from BIA to IHS. Severe underfunding and lack of services provide inadequate care with poor coordination and delivery of services.
Federal and state roles in relation to tribes are not clarified or codified. States make assertive moves on tribal lands and revenues: federal government delays or ignores its trust responsibility to tribes. Examples: California passes heinous laws in the 1800s all but wiping out any tribal claims. Washington State moves against treaty fishing rights.