Alaska Subsistence A National Park Service Management History

A. Congress Passes a Native Claims Settlement Bill

As noted in Chapter 1, Alaska's Native peoples, by and large, had rejected the traditional reservation system that had predominated in other U.S. states. Lacking that land base, these groups, over the years, had pressed the U.S. Congress for a bill that would provide legal rights to their traditional use lands. The Federal government, however, never showed much inclination to respond to Natives' needs; the closest it had come to doing so had been in during the 1940s, when Interior Secretary Harold Ickes had implemented a series of "IRA reservations," so named because they were authorized by amendments to the 1934 Indian Reorganization Act. Those reservations, however, proved to be of limited value and most were of short duration; and as the decade of the 1960s dawned, the only lands specifically allotted to Alaska Natives were a smattering of 160-acre parcels (that had been granted by the 1906 Allotment Act) and such individual parcels as Natives had been able to acquire. [1] Except for the Metlakatla reservation near Ketchikan, Alaska Natives owned virtually no communal land. This state of affairs, to be sure, was not perceived as a critical problem during the first half of the twentieth century; as late as 1960, non-Natives had little continuing interest in the vast majority of Alaska's land base, and conflicts over ownership and resource use were small in scope and generated little heat in the public policy arena.

A series of events beginning in the mid-1960s brought increased pressure for a Native land claims bill. The first major event, necessitated by Natives' ire over state land selections, was Interior Secretary Stewart Udall's land freeze, which was carried out in stages beginning in 1966. The formation of the Alaska Federation of Natives during the winter of 1966-67 helped crystallize support for a land claims bill. But what really created momentum for a Native claims bill was the Prudhoe Bay oil strike, along with the concomitant recognition that the North Slope's "black gold" would be valueless if a way could not be built to carry the oil to Outside markets; and the Interior Department refused to allow the construction of a pipeline unless the Native claims issue was addressed. [2]

Because Natives claimed rights to lands throughout Alaska, the net effect of each of these actions was to increase pressure for Natives to consummate a lands settlement, and a major byproduct of that increasing pressure was that each proposal that purported to resolve the issue resulted in an increasing number of acres for Native ownership and use. One of the first Native claim proposals, for instance, was a 1963 Interior Department plan that would have granted 160-acre tracts to individuals for homes, fish camps, and hunting sites, along with "small acreages" for village growth. (As noted in Chapter 1, the Native Allotment Act, passed sixty years earlier, had already granted Natives the right to obtain 160-acre parcels if they could prove use and occupancy.) One subsequent proposal called for the creation of a 20-square-mile (i.e., 12,800-acre) reservation surrounding each Native village, while another, somewhat later proposal suggested a 50,000-acre grant to each village along with a small cash payment to village residents. [3]

Congress made its first attempt to solve the native land claims issue in June 1967 when Senator Ernest Gruening, at the request of the Interior Department, introduced S. 1964, which would have authorized a maximum of 50,000 acres in trust for each Native village. Native rights leaders were vociferously opposed to S. 1964—Emil Notti stated that it was "in no way fair to the Native people of Alaska." So just ten days later, both Gruening and Rep. Howard Pollock (D-Alaska) submitted bills (S. 2020 and H.R. 11164, respectively) on behalf of the Alaska Federation of Natives. These bills were intended to confer jurisdiction upon the Court of Claims regarding Alaska Natives' land claims. Later that year, Edward "Bob" Bartlett, Alaska's other U.S. Senator, submitted his own bill (S. 2690) pertaining to the land claims issue. All four bills were brief and none were extensively debated, although they did serve as a vehicle for further discussions. [4]

By January 1968, a land claims task force appointed by Governor Walter Hickel recommended that Native villages be granted a total of 40 million acres and that cash payments be provided which, under specified conditions, would total more than $100 million. Later that year, the Federal Field Committee for Development Planning in Alaska issued a report, entitled Alaska Natives and the Land, that recommended a land grant of from four to seven million acres plus a cash grant of $100 million and 10 percent of public lands mineral royalties; shortly afterward, the Interior Department countered with a proposal to provide 12.5 million acres and $500 million. [5] The Natives soon weighed in with their own proposal, which included 40 million acres and $500 million; in addition, it called for the creation of twelve regional Native corporations that would manage the land and money received in the settlement. But no one in a position of power advocated extensive Native land grants; Senator Henry Jackson (D-Wash.) stated that "The last thing that I think we want is tremendous land grants, resulting in large, idle enclaves of land," while another Senate Interior Committee member, Clinton Anderson (D-N.M.) asked, "If all the people who claimed aboriginal title were granted land, there would not be enough for the rest of us, would there?" As in 1967, none of the land-claims settlement bills submitted in either Congressional chamber received so much as a committee hearing. [6]

Up until this time, the various legislative proposals did not include land in southeastern Alaska. But as noted in Chapter 1, a January 1969 Court of Claims decision awarded the Tlingit and Haida plaintiffs money and land in a case that had first been filed back in 1935. Despite that award, however, the court had decreed that Indian title had not been extinguished to more than 2.6 million acres of land in Alaska's southeast. As a result, Natives in southeastern Alaska joined their colleagues elsewhere in the state to push for an equitable lands settlement.

Early in 1969, Congress began sorting through the various proposals, and the Senate Interior Committee attempted to work out an acceptable bill that fall. Bickering within the committee, and occasional leaks to the press of the Committee's negotiations, effectively prevented progress for several months. Then, in April 1970, a Federal judge halted all work on the proposed pipeline until the native claims issue could be worked out (see Chapter 1); as a result, various oil companies joined the chorus of those pushing for a viable Native claims bill. Within a week, the Senate Interior Committee reported a bill out, which called for $1 billion in compensation plus 40 million acres of land surrounding the villages. That bill, S. 1830, passed the Senate in July 1970, but the House did not act. The bill died with the adjournment that fall of the 91st Congress. [7]

Early in 1971, the prospects for a bill looked bleak. But in April, President Richard Nixon presented a special message to Congress that called for a 40 million-acre land entitlement and a $1 billion compensation package; that same month, Chairman Henry Jackson of the Senate Interior Committee submitted a revised bill (S. 35) that was co-sponsored by Alaska's two newly-minted senators, Mike Gravel and Ted Stevens. Attention then shifted to a House subcommittee, which reported out its version of a bill in early August, and on October 20 the entire House passed a land claims bill (H. 10367). In early November, the Senate overwhelmingly passed a bill that differed significantly from the House's version. The House-Senate conference committee sifted through these differences and reported out compromise legislation in early December. That compromise, which called for a $962.5 million cash payment, a 40 million-acre land conveyance, and numerous other provisions, was passed by both legislative bodies. President Nixon signed the Alaska Native Claims Settlement Act (ANCSA) on December 18, 1971. [8]

Alaska's two U.S. Senators during the 1970s were Mike Gravel (left) and Ted Stevens. ADN

Alaska Natives were hopeful that that any land settlement bill that passed Congress would contain language that would provide not only land ownership but also legal protection for the Natives' continued use of the public lands. This provision was necessary because, as Alaska Natives and the Land had made clear, Alaska Natives needed far more land for their traditional uses than simple land grants could provide. To provide for this need, the earliest land-settlement bills—S. 1964, introduced in mid-June 1967—included the first tentative attempt to legislate protections for continued Native access and use. Section 3(e) of the brief bill stated, in part, that

The Secretary of the Interior may ... issue to natives exclusive or nonexclusive permits, for twenty-five years or less, to use for hunting, fishing, and trapping purposes any lands in Alaska that are owned by the United States without thereby acquiring any privilege other than those stated in the permits. Any patents or leases hereafter issued in such areas ... may contain a reservation to the United States of the right to issue such permits and to renew them for an additional term of not to exceed twenty-five years in the discretion of the Secretary. [9]

The other three bills submitted that year contained no such protection. By the following year, however, Secretary Udall's land freeze had been in effect for over a year, and optimism about the Prudhoe Bay oil strike was quickly spreading. Perhaps in response, all three of the land-settlement bills introduced in 1968 addressed the issue of "aboriginal use and occupancy." S. 2906, introduced on February 1, stated that "The Natives of Alaska may continue to use or occupy, for hunting, fishing, and trapping purposes, and for any other aboriginal use any lands that are owned by the United States." But H.R. 15049, introduced the same day by Rep. Howard Pollock, made no such sweeping provision; it stated only that the Interior Secretary could grant lands outside the state's various Native villages "if he finds that such additional grant is warranted by the economic needs of the native group or his determination that the native group has not received a reasonably fair and equitable portion of the lands settled upon all native groups and granted by this Act." A third bill (S. 3859), submitted by Sen. Gruening in July 1968, was similar to the plan described in S. 1964 a year earlier; it gave the Interior Secretary the ability to "issue permits to Natives in Alaska giving them the exclusive privilege for not more than fifty years from the date of this Act to hunt, fish, trap, and pick berries ... on any land in Alaska that is owned by the United States. Such use shall not preclude other uses of the land, and shall terminate if the land is patented or leased." None of these bills advanced beyond the committee stage. [10]

On April 15, 1969, the Senate Committee on Interior and Insular Affairs broke new ground when it submitted S. 1830, the "Alaska Native Claims Settlement Act of 1969." S. 1830, among its other provisions, introduced the term "subsistence" to the legislative lexicon. [11] Section 13 of the bill, which addressed the "Protection of Subsistence Resources," stated that the Interior Secretary

shall, after a public hearing, ... determine whether or not an emergency exists with respect to the depletion of subsistence biotic resources in any given area of the State and may thereupon delimit and declare that such area will be closed to entry for hunting, fishing, or trapping, except by residents of such area ... The closing authorized by this section shall not be for a period of more than three years, and may be extended by the Secretary after hearing, and a published finding that the emergency continues to exist. [12]

This bill (both its subsistence provisions and other elements) was considerably revised and expanded over the following year. [13] As noted above, S. 1830 passed the Senate in July 1970 but, owing to inaction in the House, it did not become law.

During the next few months, additional effort was expended toward perfecting the bill's subsistence provisions, so by the time the Interior Department introduced a new land claims bill the following January (S. 35), the subsistence title (Section 21) had doubled in length. It continued, with some modifications, the provisions contained within S. 1830. In addition, it gave the Interior Secretary the power "to classify ... public lands surrounding any or all of the Native Villages ... as Subsistence Use Units," and it was those units that the Interior Secretary was empowered to close if, as noted above, "subsistence biotic resources" became depleted. According to longtime AFN attorney Donald Mitchell, the subsistence section in S. 35 "wasn't particularly friendly toward Native interests" and was not the product of any AFN officials. He averred that its probable author was David Hickok, a staff member on the Federal Field Committee for Development Planning in Alaska. [14]

As S. 35 made its way through the legislative process that year, its subsistence provisions became further refined, and by October 1971 a four-page subsistence title had emerged. It included provisions for both subsistence units and for closure of such units if necessary, as the January iteration of the bill had delineated. In addition, it specified that the various Native villages described in the Act "shall designate the areas ... which (A) historically have been used for subsistence purposes by their members, and (B) still are necessary, desirable and in use for such purposes." The Alaska Native Commission, which would be created by the Act, was empowered to determine the amount of these "subsistence use permit lands" for each village; the total amount of these lands for all villages would be 20,000,000 acres. The title further stated that "five years after the issuance of each subsistence use permit, and every five years thereafter, the Secretary shall review the question of whether the area still is being use for subsistence purposes. If the Secretary finds ... that the area is not being so used in whole or in part, he shall terminate the permit with respect to the unused lands." As in the January version of S. 35, Natives were not consulted on any of the language contained in Section 21. [15]

These subsistence provisions were included in the bill that passed the Senate in early November. But the House-passed bill omitted any such provisions, primarily because Wayne Aspinall (D-Colo.), the head of the House Interior Committee, felt that existing law was sufficient to provide these protections. When the House-Senate conference committee met to iron out the differences between the two bills, the powerful Aspinall prevailed on the Senate conferees to accept the House bill as it pertained to the all-important subjects of land and money. (It did so despite two last-minute appeals to the contrary by the Alaska Federation of Natives.) The remaining, "B-List" sections of the bill—that dealt with subsistence and other management issues—were referred by Senator Alan Bible (D-Nev.) to Alaska's Congressional delegation for resolution. These issues were decided, to a large extent, at a meeting in Senator Stevens's office on Saturday, December 4. Meeting attendees included the state's Congressional delegation (Rep. Nick Begich and senators Ted Stevens and Mike Gravel), along with Alaska Governor William A. Egan and Attorney General John Havelock. No Alaska Natives were present. A memorandum that was prepared after that meeting recommended that no subsistence provisions should be included in the bill reported by the conference committee. The conference, in turn, accepted that recommendation. Natives, upon hearing the news of what had transpired at the weekend meeting, were outraged at being excluded and were similarly chagrined at many of the group's conclusions. They were not, however, angry at the lack of a subsistence provision. Subsistence, at the time, was "not a political issue," and conflicts over subsistence resources on Alaska's public lands were few and far between. [16]

Although the bill, as signed into law, lacked a specific subsistence provision, the conference report accompanying the bill expressly stated that the bill protected Native subsistence users. A section of the report that was probably written by David Hickok noted the following:

The conference committee, after careful consideration believes that all Native interest in subsistence resource lands can and will be protected by the secretary through the exercise of his existing withdrawal authority. The secretary could, for example, withdraw appropriate lands and classify them in a manner which would protect native subsistence needs and requirements by closing appropriate lands to entry by non-residents when the subsistence resources of these land are in short supply or otherwise threatened. The conference committee expects both the secretary and the state to take any action necessary to protect the subsistence needs of the Natives. [17]

Alaska conservationists, who had become increasingly active during the 1960s, were concerned when they heard about the large amounts of acreage that were being considered as part of the various Native claims settlement bills. (This concern had been growing ever since State land selections had begun a decade earlier.) Conservationists' concerns, which were also shared by officials in the various Federal land management agencies, resulted in pressure to include a special lands provision in any Native claims bill that emerged from Congress. This provision, its proponents hoped, would call for a survey and evaluation of the Alaska's federal lands for parklands, wildlife refuges, and other "national interest" lands. [18] The head of the influential Federal Field Committee for Development Planning in Alaska, Joseph Fitzgerald, recognized as early as 1966 that planning for a multifaceted "park complex" would be central to any Native claims settlement, and Fitzgerald assigned David Hickok, a member of his staff, to work with Congressional leaders on a national interest lands provision that would be included in Native claims legislation.

Federal land management officials, during this period, were also active in the planning arena. The Interior Department, in accordance with the Multiple Use and Classification Act of 1964, was charged with reviewing its lands to determine which should be disposed of and which should be retained under multiple use management, and by the late 1960s the Bureau of Land Management had completed a classification scheme in the Iliamna Lake area. [19] The National Park Service, for its part, had been planning for potential Alaska parklands since the fall of 1964. By the late 1960s it had already completed a number of initial planning studies, and provisions for park planning had gained a more broad-based legitimacy through the efforts of Interior Secretary Walter Hickel's Alaska Parks and Monuments Advisory Commission and the Federal Field Committee for Development Planning in Alaska. [20]

Legislative efforts to include a national interest lands provision had begun early. Such a provision was included in S. 1830 (which the Senate had passed in 1970), and due to pressure from conservationists, it was also included in various bills that the Senate Interior and Insular Affairs Committee considered in 1971. On the House side, conservation-minded representatives John Saylor (R-Pa.) and Morris Udall (D-Ariz.) had announced in May that they intended to introduce an interest lands provision, but due to lobbying by Natives, the State of Alaska, the oil industry, and administration officials, an amendment calling for a national interest provision was defeated in both the House Interior and Insular Affairs Committee and the full House. But Alan Bible (D-Nev.), a member of the Senate Interior and Insular Affairs Committee, vowed to fight for a national interest lands provision, and when he introduced such an amendment on the Senate floor on November 1, the Senate regarded it as non-controversial and handily accepted it. In the House-Senate conference committee, the interest lands provisions was considered on December 9, and the conferees readily agreed to the provision—specifically, a provision that would give the Interior Secretary authority to withdraw up to 80 million acres, to be studied for possible inclusion to either the national park, wildlife refuge, wild and scenic river, or national forest systems. [21] This provision, known as the "d-2" provision because it was located in Section 17 (d) (2) of ANCSA, was the fundamental engine that drove NPS planning in Alaska for the remainder of the decade.

Map 4-1. Regional Corporations Established Pursuant to the Alaska Native Claims Settlement Act, December 18, 1971. (click on image for an enlargement in a new window)