In this module you will develop an idea of what Alaska Natives were experiencing in the years immediately prior to ANCSA, you will learn about treaties, how the federal government obtained lands from Indian tribes, and how the conditions of the settlement that Alaska Natives reached concerning their claims in Alaska differ from those made between tribes and the federal government in the Lower 48 states. You will be introduced to the different eras of federal Indian policy and how these have impacted the lives of tribal people in the U.S. and their relationship with the federal government today. Aboriginal title will be explained in relationship to Alaska and its importance to the negotiations that produced the Alaska Native Claims Settlement Act of 1971 (ANCSA). The importance of the federal Indian policy that was in place when ANCSA was signed into law is stressed relative to the shape of the final agreement.
Learning Objectives:
Upon completion of Module 1 a student will be able to
- Describe Alaska Native life prior to the Alaska Native Claims Settlement Act of 1971.
- Explain the concept of “aboriginal title.’
- Explain the legal reasons for the Alaska Native Claims Settlement Act of 1971.
- Recognize differences between ANCSA and treaties made with “Lower 48’ Indian tribes.
- Describe the periods of Federal Indian Policy and discuss which policy ANCSA fits into.
Reading assignment:
- Arnold: Unit 3, Chapter 11, “Encroachments’
- Arnold: Unit 3, Chapter 12, “Unacknowledged Title.’
- On-line at: https://www.alaskool.org/projects/ancsa/landclaims/LandClaimsTOC.htm
- Hensley, William L. “What Rights to Land Have the Alaska Natives: The Primary Question.’ (1966 with 2001 Introduction). https://www.alaskool.org/PROJECTS/ANCSA/WLH/WLH66-All.htm
- Gallagher: Chapters 1-6, pp. 15-89
- Mitchell: Introduction, pp. 1-9.
Lecture Notes:
Aboriginal land claims require a basis in law to enable their settlement. Aboriginal and indigenous groups who must attempt to pursue land claims outside of the existing legal framework of the colonial state find the process difficult if not impossible. If there is not already some understanding of aboriginal land rights (however minimal) within the dominant legal system, trying to establish land claims is akin to attempting to build a house with no tools. In Alaska the legal concept and understanding of “aboriginal title’ formed the basis for the successful pursuit of land claims by Alaska Natives during the 1960s ANCSA negotiations, and also during the earlier Tlingit and Haida land claims that commenced in 1929. Differing definitions of aboriginal title exist, but for the purpose of this class we will use a commonly recognized legal definition of Aboriginal title as being a common law property interest in land.
Federal Indian law and policy had long recognized that Native peoples within the confines of the United States had rights to the lands they occupied prior to the arrival of European settlers. This recognition stems from the international legal principle of the “Doctrine of Discovery’ and further back into history to medieval religious law. It was expanded and refined as the incoming Europeans dealt with the realities of an existing, comparatively large and powerful, population in the land they would have preferred to be “terra nullius.’
“Discovery’ conferred (amongst other things) the understanding that after a European power “discovered’ aboriginal lands the occupants only retained the rights to use and occupy the land (Aboriginal Title). In theory they could keep these rights forever by refusing to sell the lands. If they did choose to sell they were limited in choice of buyers and could only sell to the discovering government, thus their title was a restricted ownership right. Subsequent dealings with Indian tribes, and the body of policy and law that developed before and after the framing of the U.S. Constitution, find their roots in this legal principle.
The U.S. Constitution and subsequent court actions in the young U.S. Supreme Court established what are now known as the “plenary power’ of Congress to deal exclusively with Indian tribes. States do not have legal standing to negotiate with tribes over land. Tempering these powers is the fiduciary and trust responsibility that Congress holds towards tribes, implying that actions taken by Congress that affect the lives and futures of American Indians and Alaska Natives must always be in their best interest. Over the years Congress has adopted a variety of approaches to meeting this trust responsibility; not all of these have met the long term “best interest’ mandate.
Prior to 1871 over 800 treaties had been signed between Native American tribes and the U.S. government in what is now the contiguous United States or the “Lower 48.’ All of the colonial powers, Spain, Holland, France, and England recognized the need to negotiate with Indian governments over land rights and change of governmental status and the U.S. continued the practice. In these treaties the tribes usually gave up aboriginal rights to large areas of land in exchange for the guarantee of tribal ownership of smaller amounts of land (reservations) and payments of cash, rights to hunt and fish off reserve, tools, and guarantees of the provision of services from the federal government. Most of the land in question is held in trust for the tribes by the federal government.
While some of the later treaties were little more than agreements to continue payments of goods and annuities in payment for land many of them were all encompassing documents delineating land rights on and off reservations and are still good law today. It was clearly recognized that the tribes had rights to the land they were giving up, and any rights pertaining to either the land kept in the treaty or the lands ceded that were not addressed in the treaty were retained by the tribes.
In Alaska, Native land claims had never been addressed and when Alaska achieved statehood in 1958 the new government began the process of land selection with no regard for pre-existing Native land ownership, forcing Alaska Natives into action to defend their land rights.
In order to understand the passage of ANCSA a clear knowledge of contemporary Alaskan life is important. ANCSA did not take place in a vacuum; it involved many people from diverse backgrounds and from all corners of the state. It brought together Alaska Natives who spoke different languages and grew up in communities hundreds of miles apart, with attorneys, legislators and the national government. These communities had different traditions and ways of doing things, prior communication across the state had been minimal, and very few of the Native participants had experience with national politics. Native people found a common cause in preventing the loss of their ancestral lands and overcame immense barriers to achieve their goal. Many of them remain involved in the ANCSA process today, and you will hear from some of the prominent participants throughout this course.
Alaska Natives had to manage communications with attorneys and lobbyists, and make their case to people who had absolutely no idea how Alaska Natives lived. They had to raise money to support their efforts, pay for travel, and find ways to communicate what they were doing to people in villages with no phones who were visited by the mail plane once a week. Many people, Native and non-Native, worked very hard to produce the settlement. They worked within a legal process whose attitude towards Natives had fluctuated over many years, one that shaped the attitudes of many of the non-Natives involved.
Study Questions:
This unit discusses the concept of “aboriginal title’ and the differences between ANCSA and the treaties made with tribes in the Lower 48 states. If aboriginal title is part of the basis for all land negotiations between Alaska Natives and American Indians and the federal government why do you think ANCSA is so different from the treaties?
Google Search:
Each of the names of the speakers in the video clips. Note: Sometimes it is necessary to add a word or two after the name when searching to get the best results. If you do not receive much information add such words as, “Alaska,’ “Alaska Native,’ or “ANCSA.’ Also try name variations such as “William’ for “Willie,’ “Al’ for “Alfred’ or “Ron’ for “Ronald.
Audio and Video files for this unit are located here
Images:
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