ANCSA is loaded with complicated technical provisions. When you begin to examine these closely you start to have an understanding of how different the ANCs really are from mainstream corporations. No main stream corporation ever had to spend the kind of monies that the ANCs had to outlay simply to clarify who owned what and where it was located, and it is extremely unlikely that any mainstream corporation has ever had to wait over almost 40 years to obtain title to property it owned. No mainstream corporation has ever had to turn around and give newly acquired property to a municipal government, and we already know that a restriction on the sale of shares is unique to ANCSA.
Learning Objectives:
Upon the completion of Unit 13 a student will be able to
- Explain ANCSA Section 7(i) and why it was controversial.
- Explain ANCSA Section 14(c) and its basis for disagreement.
- Discuss ANCSA Section 22(g) and the legal relationship between U.S. wildlife refuges and Native corporations.
- Describe ANCSA Section 14(h)(1) and the process for protecting cultural places and documenting traditional knowledge under ANCSA.
Module 13 reading assignment:
- Pratt: “A History of the ANCSA 14(h)(1) Program and Significant Reckoning Points, 1975-2008. pp. 3-43.
- Pratt: “Neets’it Gwich’in Caribou Fences: An Oral and Documentary History.’ By Lynch and Pratt. pp. 72-87.
Lecture Notes:
If a mainstream corporation decided to buy vacant land it would do so on a speculative basis, choosing land that it could develop or resell at a profit. It would not make its choices based on the day to day living needs of shareholders. ANCSA corporations had to do a combination of both — minus the part about reselling at a profit. They had to balance their land selection choices between the needs of shareholders which predominantly involved subsistence uses, and the hope that at some time in the future they might be able to develop some of the land and make money from it. They could not choose land with the expectation of later selling at a profit. Additionally they had to choose large amounts of land in very remote areas where little or no surveying had taken place, do so within a restricted amount of time, and according to the whims of the designers of ANCSA, very few of whom had ever set foot in Alaska.
One of the most unusual and difficult provisions to implement was 7(i) shown below;
(i) Seventy per centum of all revenues received by each Regional Corporation from the timber resources and subsurface estate patented to it pursuant to this Act shall be divided annually by the Regional Corporations organized pursuant to this section according to the number of Natives enrolled in each region pursuant to section 5. The provisions of this subsection shall not apply to the Thirteenth Regional Corporation if organization pursuant to subsection (c) hereof.
7(i) placed a mandate for sharing revenue on the shoulders of the ANCSA regional corporations unlike anything in place in the incorporation documents of any other business corporation in the United States. Corporations compete with each other when they do business: they do not share profits with each other. This provision inserted a level of social responsibility far more like traditional tribal practices than standard business activity, except that while tribes might share between members they would not normally share with other tribes. It was very popular with the corporations that did not have significant natural resources but unpopular with those that did.
The idea behind 7(i) arose from Congressional understanding that not all the corporations would have the same natural resources on their lands, and that some would have very little opportunity to develop them. 7(i) was intended to spread the wealth from natural resources between all the ANCSA corporations. It did not however take into account the costs that different corporations would incur when they developed these resources, or how these costs might also be re-distributed. This provision resulted in extended legal action between the corporations as they tried to agree on how to make it work. Eventually the regional corporations reached agreement among themselves, but not before extensive resources were expended on attorneys.
ANCSA §7(j) extends the sharing to the village corporations further complicating the distribution of funds. §7(j) states that:
“During the five years following the enactment of this Act, not less than 10% of all corporate funds received by each of the twelve Regional Corporations under section 6 (Alaska Native Fund), and under subsection (i) (revenues from the timber resources and subsurface estate patented to it pursuant to this Act), and all other net income, shall be distributed among the stockholders of the twelve Regional Corporations. Not less than 45% of funds from such sources during the first five-year period, and 50% thereafter, shall be distributed among the Village Corporations in the region and the class of stockholders who are not residents of those villages, as provided in subsection to it. In the case of the thirteenth Regional Corporation, if organized, not less than 50% of all corporate funds received under section 6 shall be distributed to the stockholders.’
§7(j) has been a lifeline for many of the village corporations; without this distribution some would have no other source of revenue flow.
ANCSA §14(c)(3) was a very controversial provision requiring village corporations to transfer a portion of their land to an existing municipal government or to the State to be held in trust for the use of a future municipal government.
(3) “the Village Corporation shall then convey to any Municipal Corporation in the Native village or to the State in trust for any Municipal Corporation established in the Native village in the future, title to the remaining surface estate of the improved land on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs: Provided, That the amount of lands to be transferred to the Municipal Corporation or in trust shall be no less than 1,280 acres’
ANCSA § 14(a) allotted land as follows: if the village had populations shown below on the 1970 census enumeration date it was entitled to a patent for lands in the amount of
25 and 99 residents: 69,120 acres.
100 and 199: 92,160 acres.
200 and 399: 115,200 acres.
400 and 599: 138,240 acres.
600 and more: 161,280 acres.
So, a village with less than 99 residents lost a disproportionately large acreage to a municipal government compared to a village with 600 or more residents.
Municipal governments are state chartered governments, and there are no restrictions on who may run for office and participate unlike a tribal government which is allowed by law to restrict participation to its membership. ANCSA lands, which were Native lands, were to be transferred out of Alaska Native control and into the control of a municipality with a potential for control by non-Natives.
Another provision of ANCSA that would be entirely out of place in a mainstream corporation is 14 (h)(1).
(1) The Secretary may withdraw and convey to the appropriate Regional Corporation fee title to existing cemetery sites and historical places;
14(h)(1) meant that business corporations received conveyance of lands that would normally be taken care of by governments or private trusts. While this provided a means for Native sacred sites to be protected by Native organizations, it also meant that business corporations would be charged with owning and caring for land they could never consider for development, and in some cases that land was subject to federal requirements for maintenance and protection that resulted in cost to the corporation.
ANCSA § 22(g) illustrates another restriction on land subject to selection by the ANCSA corporation.
(g) If a patent is issued to any Village Corporation for land in the National Wildlife Refuge System, the patent shall reserve to the United States the right of first refusal if the land is ever sold by the Village Corporation. Notwithstanding any other provision of this Act, every patent issued by the Secretary pursuant to this Act-which covers lands lying within the boundaries of a National Wildlife Refuge on the date of enactment of this Act shall contain a provision that such lands remain subject to the laws and regulations governing use and development of such Refuge.’
National Wildlife Refuges have very restrictive use covenants so if a village corporation selected any of its land in a Refuge those lands would be governed by the same restrictions. No development is allowed in a Refuge without the approval of the U.S. Fish and Wildlife Service and if a village selected its lands within a Refuge boundary the uses restricted to subsistence only. This worked well for communities for whom subsistence was a priority, but not so well for those that wanted to develop revenue from the corporate assets.
Study Questions:
This unit examines some of the different provisions of ANCSA that were especially problematic for the new corporations to implement. Choose from 7(i), 7(j) 14(c), 22(g), 14(h) (1), or a different provision of ANCSA that especially interested you and provide your thoughts on implementation.
Video and Audio files for this unit are located here
Images:
Please click on a thumbnail to start a slide show.
