After a lengthy history indicating that Alaska Native people had aboriginal claims to ancestral lands and resources, and some debate and litigation over whether or not they did, Congress answered the question in a very distinctive way. On December 18, 1971 Alaska Native aboriginal claims were ‘settled’ and extinguished by an Act of Congress and signed by President Nixon through the Alaska Native Claims Settlement Act (ANCSA), the largest land claims settlement in U.S. history. Some called it an ‘experiment,’ others declared it to be an act of ‘assimilation’ or even ‘termination,’ and all would agree that the implementation of ANCSA is very complex. ANCSA has been amended by every Congress since its passage, both to refine the terms of the settlement and also to reduce the likelihood of losing the land so precious to the Alaska Native people. It has seen tremendous successes and some failure, and today, some 40 years later, issues are still being worked out such as the rights of Alaska Native people born after ANCSA was passed, rights to fish and game resources, and the jurisdiction of tribes that were essentially left landless.
Alaska Native people had a claim to ownership of all land in Alaska, surface and sub-surface, based on their aboriginal use and occupancy of it. The settlement of that claim was far from a land give-away. Rather than designating reservations held in trust by the United States government as the majority of tribes in the Lower 48 have, the Alaska Native Claims Settlement Act created 12 regional profit-making Alaska Native corporations and over 200 village, group, and urban corporations to receive what would end up being around 45.5 million acres of land along with about a billion dollars cash payment. A 13th regional corporation headquartered in Seattle was later established for Alaska Natives who lived outside of Alaska which participated in the cash settlement but did not receive land. The corporations have specific procedures to follow as provided by ANCSA, but they are also incorporated under State of Alaska law and must follow state corporation law. The lands, assets and businesses are owned by the shareholders of the Native corporations, and subject to terms, protections, and restrictions placed on them by both federal Indian law (ANCSA) and by State of Alaska corporation law.
The most common pattern of land selection was for the village corporations to select core township lands around the villages. The village and regional corporations selected lands around the perimeter, alternating townships to create a ‘checkerboard’ pattern. The village corporations own the surface estate to their lands, while the regional corporation owns the sub-surface of the village corporation lands. ANCSA also gave the village corporations some control over development “within the confines of the Native village” by the regional corporations. The split ownership of the land surface and sub-surface resources, and control over development, generated controversy between regional and village corporations over the details of what it actually meant in practice, and court decisions and amendments to ANCSA have been necessary to clarify this relationship. Villages that had reservations were allowed to choose between being treated like other villages or to have their village corporations select all the former reservation lands, both surface and subsurface rather than participating in their regional corporations.
The land selections authorized under ANCSA are very complex, and amendments to ANCSA were made to correct some of the inequities made during the selection process. In addition to lands owned by the Native corporations around the villages, corporations also ended up with blocks of lands in various places in Alaska, and relatively smaller allocations went to urban and rural Native groups. The land settlement made through ANCSA is further complicated by land exchanges, easements, land protection issues, and requirements for village corporation reconveyance of land to individuals, businesses, and for community development under Section 14(C)(3) of ANCSA. ANCSA terminated all the Indian reservations and reserves in Alaska with the exception of Metlakatla. Tribes that had their reservations terminated had the option of keeping their former reservation land with both surface and subsurface ownership. If they chose that option they did not receive a cash settlement or participate as shareholders in the regional corporations. ANCSA also affected Native lands by repealing the Alaska Native Allotment Act of 1906, unless Congress permits exceptions for new Native allotments.
Around 80,000 people of at least ¼ Alaska Native blood, living at the time of the passage of the Alaska Native Claims Settlement Act, became the shareholders in the ANCSA corporations. People could enroll under ANCSA based upon residency in 1971 or past residency, place of birth, or based on family heritage. Native people could also choose to enroll in a region only, and not in a village. These shareholders, known as “at-large” enrollees, received additional stock benefits that village enrollees did not receive. Alaska Native people born after December 18, 1971 could not receive ANCSA stock except by inheritance or court order in a divorce or child custody dispute. Later amendments to ANCSA allowed the shareholders of the corporations to decide if they want to admit children born after the date ANCSA was passed as new shareholders. A few village and regional corporations have done so, but this continues to be an issue of controversy within many of the Alaska Native corporations. Today, approximately 60% of Alaska Natives are shareholders in ANCSA corporations.
Originally the land and ownership of the corporations through stocks was protected from loss only for the first twenty years after ANCSA was passed because Native corporation stocks could not be sold until December 18, 1991. Selling stock on the open market would most likely have lead to the loss of Native control and ownership over the corporations and lands to non-Native individuals and corporations which is why many called ANSCA an act of termination. Congress did take action and adopted the so-called ‘1991 amendments’ to extend the restrictions on selling stocks in the Native corporations until a majority of all shareholders in a particular corporation vote to eliminate the restriction. None have done so.
The Alaska Native corporations employ thousands of people in Alaska and worldwide through a tremendous variety of businesses ranging from natural resource development to telecommunications, engineering, government contracts, construction, drilling, environmental remediation, alternative energy, real estate, investments and tourism. A provision of ANCSA referred to as ‘7(i),’ requires each land owning regional corporation to pay the other eleven regional corporations a percentage of the revenue received from the subsurface resources and from timber sales. This provision was meant to make up for an uneven distribution of Alaska’s natural resources such as timber, gravel, and oil. The individual corporations distribute dividends to their stockholders as profits from businesses and investments permit.
While ANCSA extinguished aboriginal claims to land and “any aboriginal hunting and fishing rights that may exist,” ANCSA did not provide protection for hunting and fishing needs of the Alaska Native people. Congress expected that the State of Alaska and the Secretary of Interior would somehow protect traditional Native hunting and fishing practices. Hunting for food requires more land than was received under ANCSA, and waters with fishing resources were not part of the settlement. Section 17(d)(1 and 2) of ANCSA provided for withdrawing millions of acres of unreserved public land in Alaska for national and public interests, which resulted in the passage of the Alaska National Interest Lands Conservation Act (ANILCA) in 1980. Lack of action to protect Native hunting and fishing led to the inclusion of Title VIII of ANILCA which intended to carry out the unfulfilled settlement of aboriginal hunting and fishing rights now called ‘subsistence’ by giving a rural resident preference for subsistence resources. ANILCA also amended ANCSA by allowing ANCSA corporation land to be protected by placing it into a ‘land bank’ through an agreement.
The Alaska Native Claims Settlement Act did not grant land to the tribes in Alaska, nor did it terminate their status as tribes as some thought that it did. There were years of confusion and debate after ANCSA’s passage before the Department of Interior clarified the matter by issuing the list of federally recognized tribes in 1993 and Congress confirming it through the List Act in 1994. The tribes roughly correspond to the villages organized under ANCSA. However, without a land base held in trust like Lower 48 reservations, the jurisdiction tribes in Alaska possess became subject to many court battles.
Thirteen regional corporations created under ANCSA:
- Ahtna, Incorporated
- The Aleut Corporation
- Arctic Slope Regional Corporation
- Bering Straits Native Corporation
- Bristol Bay Native Corporation
- Calista Corporation
- Chugach Alaska Corporation
- Cook Inlet Region, Inc.
- Doyon, Limited
- Koniag, Incorporated
- NANA Regional Corporation
- Sealaska Corporation
- The 13th Regional Corporation