1980] ALASKAN NATIVE PROPERTY RIGHTS 301 Eskimos, and Aleuts.' The first Europeans to record contact with them were members of the Russian exploration expedition of Vitus Bering in 1741. The expedition reported finding large numbers of sea otters and fur seals, and before long, hoards of Russian fur hunters arrived to exploit the newly discovered wealth. The Russian-American Company was formed in 1799, and until 1867 it not only enjoyed a monopoly on the fur trade but exercised powers of government over such Russian possessions as there were in Alaska. Aside from fur traders, the Russian presence was limited to scattered churches and townsites, mostly in southeastern Alaska.' Russia ceded its rights in Alaska to the United States in 1867. The treaty of cession provided that, with the exception of "the uncivilized native tribes," all inhabitants who chose to remain in Alaska would become United States citizens." The "uncivilized" tribes, on the other hand, were declared to be "subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country." The treaty therefore implicitly divided natives into two categories, "uncivilized" and "civilized," and ordained federal citizenship for the latter."2 7. Congressional legislation relating generally to Indians applies to all four groups, while legislation relating specifically to Alaska often distinguishes among Indians (Tlingits and Athapascans), Eskimos and Aleuts. United States v. Native Village of Unalakleet, 411 F.2d 1255 (Ct. Cl. 1969). Compare Act of May 25, 1926, ch. 379, 44 Stat. 629, pt.2 (repealed by Pub. L. No. 94-579, § 703(a), 90 Stat. 2790 (1976)) (Indians and Eskimos) with Act of May 31, 1938, ch. 304, 52 Stat. 593 (repealed by Pub. L.. No. 94.579, § 704(a), 90 Stat. 2792 (1976)) (Indians, Eskimos, and Aleuts). 8. H. CHEVIGny, Russian America (1979); E. GRUENING, The State of Alaska 1-29 (2d ed. 1968). 9. Treaty of Cession of Russian America, Mar. 30, 1867, United States-Russia, 15 Stat. 539. Russia's rights in Alaska were those stemming from discovery. See Lipan Apache Tribe v. United States, 180 Ct. Cl. 487, 493 (1967). "[D]iscovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession." Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 573 (1823). This title was "subject only to the Indian right of occupancy." Id. at 585. Discovery "gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest." Id. at 587. See also the discussion of McIntosh, infra at text accompanying notes 169-176. For excellent discussions of the discovery doctrine, see Barsh & Henderson, supra note 2, at 31-49; Berman, The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 BUFF. L. REV. 637 (1978); Henderson, supra note 2, 82-109. 10. Treaty of Mar. 30, 1867, United States-Russia, art. 3, 15 Stat. 539. 11. Id. 12. In re Minook, 2 Alas. 200 (D. Alas. 1904). "Civilized" natives were those considered under Russian law as being Russian subjects, including Creoles and t ettled 302 AMERICAN INDIAN LAW REVIEW [Vol. 8 In 1884 the first Organic Act for Alaska extended the laws of Oregon over Alaska, so far as applicable, and provided for the appointment of a governor to sit in Sitka." Alaska was constituted a land district, the general mining laws" were declared to be in force, and those who had already located claims were allowed to perfect them." This was subject to the provision that "the Indians or other persons" in Alaska "shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them[,] but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress."" Occupied lands up to 640 acres being used as missionary stations among the Indians were to "be continued in the occupancy" of the missionaries "until action by Congress." A final proviso cautioned that "nothing contained in this act shall be construed to put in force" in Alaska "the general land laws of the United States.""" Congress created the first Indian reservation in Alaska in 1891 when it set aside the Annette Islands Reserve for the Metlakatla Indians, a band that had immigrated from British Columbia four years earlier." Persons occupying lands in Alaska for purposes of trade or manufacture were allowed to receive patents to such lands not to exceed 160 acres,20 but this rule did not extend to lands to which the natives of Alaska have prior rights by virtue of actual occupation.""" Provision was also made for entry of lands for townsite purposes under the general townsite laws, with tribes": "uncivilized native tribes" were "those independent pagan tribes who acknowledged no allegiance to Russia . . . .' " Id. at 213-20. Cf. United States v. Lynch, 7 Alas. 568, 572 (D. Alas. 1927) (Tlingits classified as "uncivilized natives"). Federal citizenship was granted to Indians generally by the Act of June 2, 1924, ch. 233, 43 Stat. 253. The Metlakatla Indians of the Annette Islands Reserve became federal citizens by the Act of May 7, 1934, ch. 221, 48 Stat. 667. 13. Act of May 17, 1884, ch. 53, §§ 1, 2, 7, 23 Stat. 24. 14. Rev. Stat. §§ 2318-2352 (codified in 43 U.S.C.). 15. Act of May 17, 1884, ch. 53, § 8, 23 Stat. 24. 16. Id. (emphasis added). 17. Id. 18. Id. 19. Act of Mar. 3, 1891, ch. 561, § 15, 26 Stat. 1095 (codified at 25 U.S.C. § 495). The waters within 3,000 feet of the low mean tide of the islands were included in the reserve by the Presidential Proclamation of Apr. 28, 1916, 39 Stat. 1777. The Supreme Court subsequently interpreted the original reservation by Congress to include such waters but made no mention of the 1916 proclamation. Alaska Pac. Fisheries v. v. United States, 248 US 78 (1918) 20 A of Mar. 3, ch. 561, § 12, 26 Stat 1095. 1980] ALASKAN NATIVE PROPERTY RIGHTS 303 no more than 640 acres to be embraced within any one entry." The homestead laws" were extended to Alaska in 1898, but homesteads were to be limited to 80 acres; and neither entries nor acquisition of title to the shores of navigable waters were authorized." The act also delegated to the Secretary of the Interior authority to "reserve for the use of the natives of Alaska suitable tracts of land along the water front of any stream, inlet, bay or sea shore for landing places for canoes and other craft" used by natives." The second Organic Act in 1900 reorganized the civil government of Alaska and moved its seat to Juneau." The act declared that the "Indians or other persons conducting schools or missions" in Alaska should not be disturbed in the possession of lands actually used or occupied, and directed the Secretary of the Interior to survey and issue to religious societies patents to lands, up to 640 acres, occupied by them as missionary stations among the Indians."7 Although applicable, the General Allotment Act of 1887" was of little practical significance in Alaska. It authorized the creation of allotments only out of lands that were part of an Indian reservation; there were no Indian reservations in Alaska at the time. Congress corrected this situation in 1906 when it authorized the Secretary of the Interior to allot 160 acres of nonmineral land to any Indian or Eskimo meeting certain qualifications." Such persons were given a preference right to secure an allotment to nonmineral land they occupied. The allotments were to be inalienable and nontaxable until otherwise provided. In 1912 the third Organic Act provided for a territorial 22. Id. § 11 (repealed by Pub. L. No. 94-579, § 703(a), 90 Stat. 2790 (1976)). It has been held that natives were not entitled to enter townsites under this section. Johnson v. Pacific Coast S.S. Co., 2 Alas. 224 (D. Alas. 1904). But see Act of May 25, 1926, ch. 379, § 1, 44 Stat. 629 (repealed by Pub. L. No. 94-579, § 703(a), 90 Stat. 2790), which authorized the issuance of deeds to Indians or Eskimos occupying tracts surveyed pursuant to section 11 of the Act of 1891. 23. Rev. Stat. §§ 2289-2317 (codified in 43 U.S.C.; some sections repealed by Pub. L. No. 94-579, § 702, 90 Stat. 2787-88). 24. Act of May 14, 1898, ch. 299, § 1, 30 Stat. 409 (codified in 43 U.S.C.). 25. Id. § 10 (repealed by Pub. L. No. 94-579, § 704(a), 90 Stat. 2792 (1976)). 26. Act of June 6, 1900, ch. 786, § 1, 31 Stat. 321. 27. Id. § 27 (codified at 25 U.S.C. § 280a). 28. Act of Feb. 8, 1887, ch. 119, 24 Stat. 388 (codified at 25 U.S.C. §§ 331-34, 339, 341-42, 348, 349, 381). See Nagle v. United States, 191 F. 141 (9th Cir. 1911). 29. Act of May 17, 1906, ch. 2469, 34 Stat. 197 (repealed by Pub. I.. No 92-203, § 18, 85 Stat. 710 (1971)). 304 AMERICAN INDIAN LAW REVIEW [Vol. 8 legislature" and a nonvoting delegate to Congress." The act further provided that "the Constitution of the United States, and all the laws thereof which are not locally inapplicable, shall have the same force and effect within [Alaska) as elsewhere in the United States. ... 9932 The newly created territorial legislature in 1915 enacted the Indian Village Act allowing any native village of at least forty permanent inhabitants to organize a municipal government." In 1926, Congress provided for the issuance of deeds to lands set apart for Indians and Eskimos within townsites entered and surveyed pursuant to the Act of 1891, and for the survey and conveyance of patents to Indians and Eskimos occupying nonmineral lands within existing towns and villages." The title conveyed was inalienable without the approval of the Secretary of the Interior and not subject to taxation, levy and sale, or claims of adverse occupancy." The self-government provisions of the 1934 Indian Reorganization Act were not applicable to Alaska until 1936." Because of differences in organization between communities of Alaskan natives and Indian tribes elsewhere, Congress allowed that groups of Indians in Alaska not heretofore recognized as bands or tribes, but having a common bond of occupation, or association, or residence within a well-defined neighborhood, community, or rural district, may organize to adopt constitutions and bylaws and to receive charters of incorporation and Federal loans under [the Indian Reorganization Act]." Congress also authorized the Secretary of the Interior to designate as an Indian reservation any land previously "reserved" for the use of Indians or Eskimos, together with adjacent public lands or those occupied by Indians or Eskimos." Two years later 30. Act of Aug. 24, 1912, ch. 387, § 4, 37 Stat. 512. 31. Id. at § 17. 32. Id. § 3. 33. Act of Apr. 21, 1915, ch. 11, 1915 Alas. Sess. Laws, p. 24, amended by Act of May 1, 1917, ch. 25, 1917 Alas. Sess. Laws, p. 47, repeuled by Act of Apr. 13, 1929, ch. 23, 1929 Alas. Sess. Laws, p. 45. 34. Act of May 25, 1926, ch. 379, 44 Stat. 629 (repealed by Pub. L.. No. 94-579, § 703(a). 90 Stat. 2790 (1976)). 36 Act of June 18, 1934, ch $76, 48 Stat. 984, amended by Act of May 1, 1936, ch. 254, 49 Stat 1250 (codified at 25 U.SC. §§ 461-79). 37 Id. 38 Ac 704(3). . May 1, 1936, ch. 254, § 2, 49 Stat. 1250 (repealed by Pub. 1. No. 94-579, 2792 (1976)) 1980] ALASKAN NATIVE PROPERTY RIGHTS 305 the secretary was also given the authority to reserve tracts of up to 640 acres of the public domain for "schools, hospitals, and such other purposes as may be necessary" to administer the affairs of Alaskan Indians, Eskimos, and Aleuts.' 39 Alaska's long road to statehood ended in 1959 with its admission to the Union. The Statehood Act" contained two important provisions affecting Alaskan natives. First, the state disclaimed all right and title to any lands or other property . . . (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts... or is held by the United States in trust for said natives. . . [which] lands or other property . . . shall be and remain under the absolute jurisdiction and control of the United States." Second, the act provided that "the State of Alaska is hereby granted and shall be entitled to select, within twenty-five years" more than 103 million acres of "vacant, unappropriated, and unreserved" public lands." The second was probably the more important of the two provisions because it set the stage for the battle which culminated in the Alaska Native Claims Settlement Act." In 1961 the Bureau of Indian Affairs filed the first of a flood of native protests over state selections; within a decade between 80 and 90 percent of the land in Alaska was subject to native protests or other claims." When, in 1966, natives protested the federal sale of oil and gas leases on the North Slope, Interior Secretary Udall responded by suspending the lease sale and freezing the disposition of all federal land in Alaska until native claims were settled." After oil was discovered at Prudhoe Bay and the Alaska Pipeline proposed, 39. Act of May 31, 1938, ch. 304, 52 Stat. 593 (repealed by Pub. L. No. 94-579, § 104(a), 90 Stat. 2792 (1976)). 40. Act of July 7, 1958, Pub. L. No. 85-508, 72 Stat. 339 (codified at 48 U.S.C. prec. § 21 note). 41. Id. § 4. 42. Id. § 6. 43. 43 U.S.C. §§ 1601-1628. 44. Block, Alaskan Native Claims, 4 NAT. Resources Law 223, 223 (1971) estimates 80 percent, based upon claims of nearly 300 million of approximately 375 million acres in Alaska. AMERICAN INDIAN POLICY REVIEW COMMISSION, Special Joint Task FORCE REPORT ON ALASKkan Native Issues 6 (1976), estimates that claims totaled approximately 337 million acres, or 90 percent of the state. 45. The freeze was formalized Jan. 17, 1969, by Public Land Order 4582, 34 Fed. Reg. 1025. It was extended Dec. 8, 1970, by Public Land Order 4962, 35 1 Reg. |
