WHAT ARE THE POLICY AND
LEGAL SIMILARITIES BETWEEN
U.S. TREATMENT OF ALASKA
NATIVES AND THE INDIANS IN
THE LOWER 48 STATES?
Calista
Corporation
Y-K Delta
Regional
Committee
Meeting
February 4-6,
2014
Robert Odawi Porter, Esq.
February 2, 2014 Final
D +1 202 408 6348
M +1 202 308 3522
[email protected]
OVERVIEW
I. 
What is the U.S. government’s "problem" with Indigenous
peoples?
II. 
How did the U.S. address the “Indian Problem” in the Lower
48 states?
A. 
B. 
C. 
What was the goal of the Lower 48 Indian Policy?
What were the effects of the Lower 48 Indian policy?
Did the Lower 48 Indian Policy ever change?
III.  What was the U.S. government's “Native Problem” in Alaska?
A. 
B. 
C. 
How did the U.S. address the "Native problem" in Alaska?
What have been the effects of this policy?
Have there been any changes since the policy took effect?
February 2, 2014 Final
I. WHAT IS THE U.S. GOVERNMENT’S
PROBLEM WITH INDIGENOUS PEOPLES?
¡  Indigenous peoples, by definition, are the original owners and
occupiers of lands in the Americas
¡  Caucasians from Europe and Asia came to the Americas to
acquire for themselves land title and natural resources
¡  Since all of the land and natural resources were owned by
Indigenous peoples, the “Indian Problem” for all colonizing
governments, including the United States, is --
“What is the best way to eliminate the Indians as a
barrier to development and take control of their land
and natural resources?”
February 2, 2014 Final
II. HOW DID THE U.S. ADDRESS THE “INDIAN
PROBLEM” IN THE LOWER 48 STATES?
¡  Diplomacy (1492-1871)
§  enter into treaties and agreements with the Indian nations and tribes to
establish peace and secure title to some land and resources
¡  War fare (1492-1914)
§  wage war against the Indian nations and tribes until they surrender, kill
Indians by disease, imprison and subjugate the survivors, and seize their
lands
¡  Relocation and Reser vations (1830-1887)
§  by consent or force move the Indians from the growing White population
centers in the East to the sparsely inhabited areas West of the
Mississippi River
§  create small Indian-only territories as new homelands with economies
dependent upon U.S. government support, e.g. "reservations"
¡  Assimilation (1865 – present)
§  integrate the Indians into American society until they disappear as
separate peoples, thus eliminating the "Indian problem"
February 2, 2014 Final
KEY LEGAL DOCTRINES SUPPORTING U.S.
INDIAN POLICIES
¡  Discovery Doctrine –
§  European colonizing governments obtain legal title to the lands of
Indigenous peoples through simple discovery
§  Indians retain a permanent “right of occupancy” to the land
§  Adopted by U.S. Supreme Court in Johnson v. M’Intosh (1823)
¡  Plenary Power Doctrine
§  U.S. government actions dealing with Indians cannot be reviewed or
reversed by the courts, i.e. Congress can do what it wants
§  Adopted by U.S. Supreme Court in Lone Wolf v. Hitchcock (1903)
§  Amended to require “rational basis” justification, which has never
been denied in Indian law cases not implicating constitutional rights,
in Delaware Tribal Bus. Comm. v Weeks (1977)
February 2, 2014 Final
KEY LEGAL DOCTRINES SUPPORTING U.S.
INDIAN POLICIES
¡  Supremacy Doctrine
§  The U.S. federal government is superior in Indian affairs and states have
little power over Indian Country
§  Defined by U.S. Constitution Art. I, Sec. 8, Cl. 3.
§  Adopted by U.S. Supreme Court in Worcester v. Georgia (1832)
§  Congress grants all power to manage Indian affairs to Secretary of the
Interior 25 U.S.C. § 1
¡  Trust Doctrine
§  Indians are dependent people, like children, who must be treated as
wards of the U.S. federal government
§  Indian property and lands are held “in trust” to protect it from loss
§  U.S. federal government can do whatever it wants to Indian people and
Indian lands in their “best interests” with no judicial review
§  Adopted by U.S. Supreme Court in U.S. v. Kagama (1886)
February 2, 2014 Final
SOME KEY LAWS SUPPORTING U.S. INDIAN
POLICIES
¡  1790 Trade and Intercourse Act
§  Indian land transactions invalid unless approved by the U.S. government
¡  1830 Indian Removal Act
§  Authorized removal of Indians in the East and South to the Plains
¡  1887 General Allotment Act
§  Granted title to individual Indians and transferred 2/3 of all Indian land
to Whites
¡  1924 Indian Citizenship Act
§  Granted citizenship to all Indians born in U.S. without consent
¡  1934 Indian Reorganization Act
§  Reversed the General Allotment Act and established a process for
organizing tribal constitutional governments and corporations
February 2, 2014 Final
SOME KEY LAWS SUPPORTING U.S.
INDIAN POLICIES
¡  1953 H.R. Concurrent Resolution 108 establishing Indian
Termination Policy
§  Led to the "termination" of 107 Indian tribes
¡  1970 Richard Nixon Message to Congress establishing Indian
Self-Determination Policy
§  Repealed Termination Policy
¡  1975 Indian Self-Determination and Education Assistance Act
§  Provided direct funding to tribal governments
¡  1988 Indian Gaming Regulatory Act
§  Restricted sovereign tribal gaming power and expanded state role
February 2, 2014 Final
II. WHAT WAS THE EFFECT OF LOWER 48 U.S.
INDIAN POLICIES?
¡  Military neutralization
¡  Confiscation of 98% of aboriginal Indian lands
¡  Economic dependence and widespread poverty
¡  Inadequate economic integration with U.S. economy
¡  Significant religious integration
¡  Significant cultural, social and marital integration
¡  Significant political integration
¡  Widespread social dysfunction, substance abuse, depression,
suicide, obesity, and related diseases
¡  Tribal sovereignty still recognized over tribal citizens and
tribal lands, but courts have weakened authority over tribal
territory and non-citizens
February 2, 2014 Final
III. DID U.S. INDIAN POLICES EVER CHANGE
AND, IF SO, WHY?
¡  Yes.
§  U.S. Indian policies repeatedly change between periods of support or
opposition to tribal sovereignty
§  For example, destructive and self-interested policies such as
Allotment and Termination were eventually repealed and replaced by
policies that support tribal sovereignty and self-determination
¡  Why?
§  Because all policies that deny Indigenous self-determination
eventually fail as the economic condition of the people deteriorates
§  History shows that there comes a point when U.S. political officials
realize that the prior destructive policy was a failure
§  But eventually there is a backlash and opposition to tribal sovereignty
grows back
February 2, 2014 Final
IV. WHAT WAS THE U.S. GOVERNMENT'S
“NATIVE PROBLEM” IN ALASKA?
¡  Europeans began to settle in Alaska in late eighteenth century
¡  Economic exploitation of natural resources began (gold,
fisheries, oil, timber)
¡  Alaska "purchased" from Russia in 1867
¡  Statehood granted in 1959
¡  The discovery of oil in the North Slope in 1968 created new
pressure for development
¡  But, the aboriginal ownership claims of Alaska Natives had
never been completely resolved –
The indigenous people of Alaska owned all of the
Alaska territory, and this claim to the land thwarted
the ability of the United States to easily colonize and
develop the land
February 2, 2014 Final
HOW DID THE U.S. DEAL WITH THE
"ALASKA NATIVE PROBLEM”?
¡  1906 -- Alaska Native Allotment Act allows individual
allotments
¡  1936 -- Alaska Native villages could be organized under Indian
Reorganization Act
¡  1955 -- Alaska Native “Indian title” extinguished
§  Tee-hit-ton v. United States applied Johnson v. M’Intosh to property
interests of Alaska Natives
§  Because Congress had never recognized Indian title, Alaska Natives
had no right to just compensation for the taking of their timber
property interests
§  Alaska Natives lose title to the land as a matter of federal law,
retaining only a permanent right of occupancy (“Indian title”)
February 2, 2014 Final
HOW DID THE U.S. DEAL WITH THE
"ALASKA NATIVE PROBLEM”?
¡  1971 Alaska Native Claims Settlement Act -§  Extinguished all Alaska Native aboriginal Indian title
§  Extinguished all Alaska Native hunting and fishing subsistence rights
§  Secured 44 million acres of land (12% of the state)
§  Provided $1 billion in compensation to Natives
§  Established regional and village corporations to hold land
§  Made shareholders of all Natives then living
§  Provided for alienation of all shares after 1991
§  (amended to prevent alienation in 1987)
§  Extinguished rights of Alaska Natives born after 1971
§  Ignored status of village governments
§  Extinguished Indian Country status of allocated Native lands
§  (per Alaska v. Venetie (1998))
February 2, 2014 Final
WHAT WAS THE PURPOSE OF ANCSA?
¡  Architects of ANCSA wanted to -§  Create a mechanism to facilitate economic development of Alaska
§  Extinguish all aboriginal rights to the land, including subsistence
hunting and fishing § 4(b)
§  Create corporations to not only extinguish Alaska Native claims, but
create a profit motive for Alaska Natives to participate in Alaskan
economic development
§  Avoid establishing reservation system of the lower 48 that were
viewed as failures and promoters of poverty
§  Avoid establishing a trust responsibility for Alaska Natives as with
lower 48 Indians §2(b)
February 2, 2014 Final
ANCSA PURPOSE (CONT'D)
¡  Sever relationship between Native governments and the land
by requiring state-charted corporations to hold title to land § 8
¡  Exterminated Indian Country land status § 19
§  (except for Annette Islands for Metlakatla Natives)
¡  Create mechanism for eventually taking control over
remaining allocated Native lands
§  allow shares to be sold after 20 years
¡  Assimilate the Alaska Native population -¡  terminate subsistence economy,
¡  promote social integration of Natives,
¡  cut off rights of “after borns”
February 2, 2014 Final
V. HAS THE U.S. POLICY TOWARDS
NATIVES CHANGED SINCE 1971?
¡  The easy answer is “no” –
§  The central purpose and legal effect of ANCSA has not been amended
¡  But federal policy towards Natives has changed since 1971 -§  alienation of shares prevented by 1987 amendments to ANCSA
§  “after born” Natives can now be granted shareholder status
§  Village governments recognized as sovereign in 1993
¡ And for over 40 years the U.S. government has
increasingly treated ANCs as the equivalent of
federally-recognized sovereign Indian nations . . .
February 2, 2014 Final
HOW ANCS ARE TREATED LIKE
SOVEREIGN INDIAN NATIONS AND TRIBES
¡  Examples where federal law recognizes ANCs as an “Indian
tribe” -§  Indian Financing Act of 1974
§  Indian Self-determination and Education Assistance Act of 1975
§  Indian health care programs
§  Indian housing programs
§  Indian agriculture programs
§  Indian energy programs
§  Indian vocational rehabilitation programs
§  Indian elder programs
§  Indian public works and economic development programs
§  Indian environmental programs
§  Indian provisions of Violence Against Women Act of 2013
§  Tribal Consultation Presidential Executive Order No. 13175
February 2, 2014 Final
WHAT HAPPENED IN THE LOWER 48 THAT
HAS NOT HAPPENED IN ALASKA?
¡  In the lower 48 states, the Indian termination policies were
expressly repudiated and repealed
¡  Historically, repeal of failed Indian policies occurs between 20
– 40 years after initial implementation
¡  Despite repeal of termination policies, the policy effects of
the failed past policies have continued
¡  In Alaska, the termination policy effects of ANCSA have not
been expressly repudiated and repealed
February 2, 2014 Final
ROBERT ODAWI PORTER
¡  Robert Odawi Porter is an attorney and expert in the field of
American Indian law who has dedicated his 25 year legal
career to protecting and expanding the rights of Indigenous
nations and peoples.
¡  He joined the global law firm Dentons in 2013 following
nearly ten years of service as chief counsel to the Seneca
Nation of Indians and a term as the Nation’s 67th President.
¡  He has served as a Professor of Indian law and policy at the
University of Kansas, the University of Iowa, and Syracuse
University.
¡  He is a graduate of Syracuse University and Harvard Law
School and is a Seneca citizen who was raised on the
Nation’s Allegany Territory.
February 2, 2014 Final