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[Vol. 8 a strange troika coalition seeking settlement was created: Natives seeking "title" to their aboriginal lands; the State of Alaska seeking to clear Native title so it could select its lands; the major oil companies-national and international-seeking to clear Native title so that the "freeze" could be lifted and a pipeline built.“

Congress responded in 1971 with the passage of the Alaska Native Claims Settlement Act." The Act extinguished all native claims based upon aboriginal title, "if any," and authorized the distribution of approximately 40 million acres of land and nearly one billion dollars to Alaskan natives as compensation." Natives were authorized to organize twelve "regional corporations" and nearly 300 "village corporations" to share the settlement." The shareholders of a village corporation are the members of the village; likewise, the shareholders of a regional corporation are those natives originating within the region." Each village corporation was to select and receive in fee simple the surface rights to between 23,040 and 161,280 acres from the immediate vicinity." Regional corporations are to hold in fee simple the subsurface rights to village lands, together with both surface and subsurface rights to additional lands selected from within each region's boundaries."

Settlement Act lands thus are to be held in a manner quite unlike that of any Indian lands outside of Alaska. Land received under the Settlement Act may be sold by its corporate owners, but stock in regional and village corporations cannot be sold until

18,874, and June 17, 1971, by Public Land Order 5081, 36 Fed. Reg. 12,017. Public Land Order 4582 was revoked by the Alaska Native Claims Settlement Act, 43 U.S.C. § 1616(d)(1).

46. TASK FORCE REPORT, supra note 44, at 6.

47. Act of Dec. 18, 1971, Pub. I.. No. 92-203, 85 Stat. 688 (codified at 43 U.S.C. § 1601-1628). See generally, Lazarus & West, The Alaska Native Claims Settlement Act: a Flawed Victory, 40 LAW & CONT. PROB. 132 (1976); Lysyk, Approaches to Settlement of Indian Title Claims: The Alaskan Model, 8 U. BRIT. COLUM. L.. Rev. 321 (1973); Comment, Charitable Donations under the Alaska Native Claims Settlement Act, 3 UCLAALAS. I.. REV. 148 (1973).

48. 43 U.S.C. §§ 1603, 1605(a), 1608, 1611, 1613, 1615. The Metlakatla Indians of the Annette Islands Reserve are not eligible for benefits under the Settlement Act. Id. § 1618(a) Other reservations were revoked, but the natives of such reservations were given an option to acquire in fee simple the lands formerly within the reservations. Id. § 1618. 44 Id §§ 1606. 1607

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1991." Except for land that is developed or leased to third parties, Settlement Act lands are also exempt from state and local real property taxes until 1991." The corporations that own the lands are creatures of state law; they are not entitled to sovereign immunity as are tribes and with few exceptions are subject to taxation like any other state-created corporation."

Alaska and the Indian Trade and Intercourse Acts

9957

It was not long after the ratification of the Constitution that Congress adopted the first of a series of acts regulating trade and intercourse with Indian tribes." The 1790 Intercourse Act decreed that "no person shall be permitted to carry on any trade or intercourse with the Indian tribes without a license for that purpose" and provided as a penalty the forfeiture of any goods "as are usually vended to the Indians" in the possession of any person found "in the Indian Country" without a license." Perhaps the act's most important provision was the one declaring that

no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of preemption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States."

"Indian country" was left undefined until it was set out by metes and bounds in the 1796 Intercourse Act," an approach that was

53. Id. §§ 1606(h), 1607(c). See Note, Alaska Native Claims Settlement Act: Analysis of the Protective Clauses of the Act Through a Comparison With the Dawes Act of 1887, 4 AM. INDIAN L. REV. 269 (1976).

54. 43 U.S.C. § 1620(d).

55. Both regional corporations and village corporations are incorporated under state law. Id. §§ 1606(d), 1607(a). Tax exemptions are found at id. § 1620. As to the sovereign immunity of tribes from suit, see United States v. United States Fid. & Guar. Co., 309 U.S. 506 (1940); Johnson v. Chilkat Indian Village, 457 F. Supp. 384 (D. Alas. 1978) (Alaskan native village); Atkinson v. Haldane, 569 P.2d 151 (Alas. 1977) (Metlakatla Indian community). Settlement Act corporations are subject to suit. See, e.g., Aleut Corp. v. Arctic Slope Regional Corp., 417 F. Supp. 900 (D. Alas. 1976).

56. See generally F. PRUCHA, American Indian Policy in THE FORMATIVE YEARS (1962).

57. Act of July 22, 1790, ch. 33, § 1, I Stat. 137. The act was a temporary measure and was reenacted every three years until a permanent version was passed in 1802. Act of Mar. 30, 1802, ch. 13, 2 Stat. 139.

58. Act of July 22, 1790, ch. 33, § 3, I Stat. 137.

59. Id. § 4.

60. Act of May 19, 1796, ch. 30, 1 Stat. 469.

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unchanged in the 1799 and 1802 Intercourse acts."'

62

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The final Intercourse Act was passed in 1834. Its first section provided:

That all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory or Arkansas, and, also, that part of the United States east of the Mississippi river, and not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country." The act proscribed the operation of "any distillery for manufacturing ardent spirits," and forbade any person to "sell, exchange, or give, barter or dispose of, any spirituous liquor or wine to an Indian," in the Indian country. It continued the requirement of a license to reside or trade within the Indian country," and declared that "no purchase, grant, lease, or other conveyance of lands, of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the constitution.'

Alaska as "Indian Country"

1967

At the time of the enactment of the 1834 Intercourse Act the United States included only that portion east of the Mississippi River plus those portions known as the Louisiana Purchase" and the Red River Country." The rest of what is now the fifty states was acquired through annexation in 1845 and 1898," by agreement with Britain in 1846," and through cessions from Mexico in

61. Act of Mar. 3, 1799, ch. 46, J. Stat. 743; Act of Mar. 30, 1802, ch. 13, 2 Stat. 139. Section 1 of the 1802 Act provided that the boundary line was to be altered automatically should lands be ceded by tribes.

62. Act of June 30, 1834, ch. 161, 4 Stat. 729.

63. Id. § 1.

64. Id. § 21.

65. Id. § 20.

66. Id. § 4.

67. Id. § 12.

68. Comprising most of the Great Plains region west of the Mississippi River, acquired by the Treaty of Apr. 30, 1803, United States-France, 8 Stat. 200.

69. The basin of the Red River of the North, acquired by the Convention of Oct. 20, 1818, United States-Great Britain-France, 8 Stat. 248.

70 Texas was admitted into the Union pursuant to the Joint Resolution of Mar. 1, 1845,5 Stat. 797 Hawaii was annexed pursuant to the Joint Resolution of July 7, 1898, 30 Stat 750

71 Conflicting claims to the Oregon country by Britain and the United States were settled by the Treaty of June 15, 1846, United States-Great Britain, 9 Stat. 869.

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1848 and 1853" and Russia in 1867." Congress expressly extended the 1834 Intercourse Act over the Oregon territory in 1850" and the New Mexico and Utah territories in 1851," but never over Alaska, California, Hawaii, or Texas.

When an attempt was made in 1872 to enforce the liquor provisions of the 1834 Act in Alaska in United States v. Seveloff," the trial court dismissed the indictment on the ground that the 1834 Act had never been extended expressly to Alaska and, therefore, was inapplicable. The United States District Attorney had argued for the United States that Alaska was part of the Indian country, both because it was inhabited by Indians and because the 1834 Act had been extended over Alaska, proprio vigore, at the time of its cession from Russia.

The "Indian Country" is only that portion of the United States or its territories, which has been declared to be such by an act of congress. . . ." It has been so common a habit of congress upon the acquisition of territory to specially extend the laws of the United States over it, . . . that if congress had intended this or any other provision of the intercourse act to be in force in Alaska, it would, in accordance with its common practice, have so declared. . . .”

There was precedent for this holding in United States v. Tom,” where the supreme court of the Territory of Oregon had held that the 1834 Intercourse Act had effect in Oregon only by virtue of its having been extended by the Act of 1850..

72. The Mexican Cession by the Treaty of Guadalupe Hidalgo, Feb. 2, 1848, United States-Mexico, 9 Stat. 922; the Gadsden Purchase by the Treaty of Dec. 30, 1853, United States-Mexico, 10 Stat. 1031.

73. Alaska was acquired by cession from Russia, Treaty of Mar. 30, 1867, United States-Russia, 15 Stat. 539.

74. The Act of June 5, 1850, ch. 16, § 5, 9 Stat. 437, provided: "That the law regulating trade and intercourse with the Indian tribes east of the Rocky Mountains, . . as may be applicable, be extended over the Indian tribes in the Territory of Oregon. (Emphasis added.) Oregon Territory comprised what are now the states of Washington, Oregon, and Idaho.

75. Act of Feb. 27, 1851, ch. 14, § 7, 9 Stat. 574. New Mexico Territory comprised what are now the states of New Mexico and Arizona (except for the area added by the Gadsden Purchase in 1853). Utah Territory encompassed what are now western Colorado and the states of Utah and Nevada.

76. 27 F. Cas. 1021 (No. 16,252) (D. Or. 1872).

77. Id. at 1022.

78. Id. at 1024.

79. 1 Or. 26 (1853). Accord, Robinson v. Caldwell, 67 F. 391 (9th Cir. 19

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[Vol. 8

In 1873, Congress reacted by extending over Alaska sections 20 and 21 of the 1834 Intercourse Act." Later that same year Congress enacted the first Revised Statutes, collecting together all public laws of a permanent and general nature. The 1873 Revised Statutes repealed and reenacted all included provisions into positive law and by implication repealed any provisions not included." Paradoxically, the Revised Statutes omitted the 1834 Intercourse Act's definition of Indian country but did not repeal those sections of the 1834 Act that applied only in Indian country. One court ruled that this meant there was no longer any Indian country except within Indian reservations," but the Supreme Court held otherwise in Ex parte Crow Dog" in 1883. The issue in Crow Dog was whether a homicide of one Indian by another Indian on the Sioux Reservation was within the provisions of Revised Statutes §§ 2145 and 2146," which, by their terms, apply only to Indian country. The Court held that the killing had been committed within Indian country and was therefore not punishable by other than the Sioux Tribe. Six years earlier in Bates v. Clark" the Court had held that:

[A]ll the country described by the act of 1834 as Indian country remains Indian country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of Congress."

The Court in Crow Dog held that this definition applied to

all the country to which the Indian title has not been extinguished within the limits of the United States, even when not within a reservation expressly set apart for the exclusive occu

80. Act of Mar. 3, 1873, ch. 227, 17 Stat. 510, 530.

81. Rev. Stat. § 5596.

82. Forty-three Cases of Cognac, 14 F. 539 (C.C.D. Minn. 1882). 83. 109 U.S. 556 (1883).

84. Section 2145 is derived from section 25 of the 1834 Intercourse Act, Act of June 30, 1834, ch. 161, 4 Stat. 729, and provides: "Except as to crimes, the punishment of which is expressly provided for in this Title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country." Rev. Stat. § 2146 provides that "The preceeding section shall not be construed to extend to ferimes committed by one Indian against the person or property of another Indian, nor tojany Indian committing any offense in the Indian country who has been punished by the local law of the Tibe These two sections are now codified at 18 USC § 1152.