 Good morning and aloha everybody. My name is Mark Shklav. I am the host of Law Across the Sea. And today we're going north to Alaska. My guest is David Case. David is an attorney and is the author of Alaska Natives and American Laws. It's in a book that's been highly regarded as the encyclopedia of the subject. It analyzes the historical application of federal law to indigenous peoples in Alaska. And it goes deeper. It goes very deep. For over 35 years David represented Alaska Native Interests including Alaska Native Village Corporations, Tribes and Rural Municipalities. In 2011 David and his wife Dorothy retired to Hawaii. And he is now actively involved in outrigger paddling with the Kehoe Canoe Club and with the farming community with Hawaii Farmers Union United on the Big Island and other community activities. I've asked David to join me today to be my guest and to introduce us to Alaska Natives and American Laws. Good morning David. Good to meet you here in Hawaii. And our backdrop is your hometown I think, Anchorage. That's right. 38 years or so. It's a pleasure to be on the program Mark. Thank you very much for inviting me. Well welcome. Let's start off it. Who are Alaska Natives? Who are the indigenous people of Alaska? Well they are the indigenous people of Alaska of course. And they used to be at the time of the settlement of their claims in 1971 which we'll talk about. They used to be divided into generally three categories. Indians, Eskimos and Alludes. Now the names have changed over time as the indigenous peoples of Alaska have taken control of these names and the descriptions of their places and their peoples. They have begun to of course use their own names. And so were those names of the federal government? Those are just the those Indian Eskimo Alludes are sort of the angle-sized, I will call it, even colonial way of speaking of these people. Keep in mind that Indians didn't call themselves Indians. When Columbus fetched up on Hispaniola, they had their own names for themselves. They still do. Right. And those names, the Indian, Yupik, Alludes, Lutik, Athapaskan, they all have their own names. And they maintain those names. And each village will have its own name. Nune Mute, Kaya Mute, those names will be the village's names that are now being used by the indigenous peoples. So instead of Anaktuvik Pass, it's Nune Mute. And that means the people of the land. So every village is beginning to develop its own way of speaking of itself. And so there are various types of people and they have a relationship with the federal government of the United States. Could you explain what that is? Sure. It's sort of the same relationship that has evolved out of the United States Constitution and the common law for all indigenous people in the peoples in the United States. Interestingly, when I first was asked to write this book by the Alaska Native Foundation 34 and 30 years ago or so, the common assumption was that there wasn't a relationship with the Alaska Natives. There had been a settlement of their claims. With respect to the federal government. The federal government and Alaska Natives had no government-to-government relationship, which is, I'll talk about that in a bit, but the relationship essentially of indigenous peoples in America to the United States is one of one government or group of governments, 500 governments, to the United States of America, the federal government. So, and I'll get into why that is the case, but the assumption was that didn't exist in Alaska. That there was only a land claim settlement and there were no governments in Alaska that had tribal governments, as they're called, that had a relationship with the federal government. Who's assumption was that? Generally, the conventional wisdom, the federal governments, the states, everybody kind of assumed that. And I was asked to, the Alaska Natives didn't believe it. They believed they had a relationship. They believed they had their own government-to-government relationship. It had not been terminated or did not cease to exist simply because they were in Alaska. And they convened a group of people to research a lot of things. The programs observed them and I was asked to research the law. And I remember sitting in the Anchorage Law Library looking at these old cases from the beginning of the 19th century and before as I read these federal cases describing the engagement of the government with the Alaska Native villages and realizing, boy, these are tribes. The government has recognized them forever. And there's precedent for this that other places in America, the Pueblos were considered not to be in Southwest America, were considered not to be indigenous peoples at about the same time. And at the beginning of the 19th century, 20th century. And the U.S. Supreme Court reversed that and concluded they were indigenous peoples, indigenous to the United States. So I knew that that was the president and that was going to be applied here in Alaska. And sooner or later those villages which were not federally recognized as having this government-to-government relationship would be. And they were in 1998, I think it was. But back to the principles of Indian law, federal Indian law as it's called. It grows out of one clause in the Constitution, the Commerce Clause, which is Article I, Section 8, Clause 3 of the United States Constitution which grants Congress the power to regulate commerce with foreign nations among the several states and with the Indian tribes. Now notice that in that grammatical context with foreign nations and with Indian tribes is the same grammatical construct. And among the several states is different. And so the Constitution acknowledges, seems to me. That's what I'm saying. And remember that at the time of the Constitution was being written after the American Revolution, the Indian tribes were like independent nations. And they were on the borders of the United States, they were inside it. I wasn't sure what to do about them. And they were allies for and against these foreign powers with the United States. There was a real difference in their distinction as nations. And it was contemporary. Contemporary. And the people that wrote it knew about knew that. That's right. That's exactly right. And then the United States, but that's just a few words in the Constitution, just says what Congress can do. There's nothing about the rights of the indigenous peoples. And of course keep in mind that the natives also mentioned in the Constitution as the Indians not taxed. So they were not citizens of the United States. That's the underlying of that phrase in that time. So what was the relationship with these people going to be? And how was it going to be determined? Well, it was determined in the courts by common law. And by that I mean the law that is made out of the history that the courts review in deciding disputes. And we're talking about federal courts. Federal courts. The United States Supreme Court issued three decisions between 1823 and 1831. They're called the Marshall Trilogy, usually after Justice John Marshall who was the author, which laid out the basic principles that as a matter of common law in America would govern the relationship between the United States government and the indigenous peoples. Now they weren't called indigenous peoples then. They were called Indians and they lived in what was called tribes. And John Marshall's conclusions were three. There were three conclusions. We'll try to get them briefly for 200 years of law here. But the first decision, Johnson versus McIntosh, held that Indians held title by Aboriginal title. They didn't really completely own the land. But they had the right to exclusive use and occupancy of it. The theory was that the discovering powers and ethnocentric, Eurocentric rule of law that benefits the Europeans had the right upon discovery to acquire the land from the indigenous peoples. Only they had the right. So the United States acquired by virtue of this decision a monopoly on the right to acquire indigenous lands. Until the United States exercised that right, there was an exclusive right of use and occupancy. And if you are a third person, anybody, went on Indian lands without the United States having extinguished that title, you were in trespass. It could be sued and paid damages. So that's the basis for all these Indian land claims and the treaties and so forth going forward. It's based on power. It's based on power. And let's also get clear here. This is the law, but let's not get confused between law and justice. This is not fair. And many scholars and Indian people will tell you right now, it is not fair that the land could be taken by one single party and nobody else had the right to negotiate with them. The other two cases, the Cherokee cases, Cherokee Nation versus Georgia and Worcester versus Georgia, established that the indigenous peoples' governments are separate governments. And they have a separate source of sovereignty from the United States and from the states. And that the United States can deal with those indigenous peoples and their governments on a government to government basis, regulating commerce with the Indian tribes. And that is the entire basis for federal power over indigenous peoples in America. And the thing about it is, of course, it's common law. And common law can be changed by judges who reinterpret it. So it's a very immeliable basis. And in the 19th century, this little clause was interpreted by the courts as a matter of common law and constitutional law too, to grant the Congress plenary, complete, not absolute, but complete power over the field of Indian affairs. So whatever Congress did was the law of the land. And then the supremacy clause kicks in and makes that the supreme law of the land, notwithstanding anything in the constitutional laws of the courts of the states to the contrary. So that makes any federal law related to Indian indigenous peoples and their rights the supreme law of the land. And the relationship between the indigenous peoples and the United States is not a one of one race to another. It's a one of one group of governments or a government to the United States government. And that's the overall law of the United States with respect to indigenous peoples. Right. So you could have distinctions and the United States can pass laws that discriminate both for the good and the bad of indigenous peoples because it is not an invidious discrimination. It is a discrimination based on political status, the political relationship of these two institutions, tribal governments and the federal government. And that's the nexus, that's the connection. So indigenous peoples can have rights to subsistence and funding and fishing that other people don't have because not because they're red people, but because they are members of tribal governments. Okay. Now, we have a couple of minutes before our break, but with respect to the rights, present day rights of Native Alaskans, indigenous peoples of Alaska. What's the status? What can you... There was a settlement of the land claims, so there's a claim of Aboriginal title, use of occupancy to all of Alaska. In 1971, Congress exercising its plenary power under the Constitutional Commerce Clause, extinguished all the Aboriginal title in Alaska and conveyed in exchange for that extinguishment 45 million acres of land, roughly 11% of the whole state of Alaska, surface and subsurface as it's described in the statute, and a billion dollars to pay for the rest. Now, this is supposed to be the most generous settlement in American history. You can do the math. There are 365 million acres in Alaska, divide that into a billion, you get $3 an acre. It was a pretty good deal for the United States. It was a good settlement, a good negotiated settlement. Was it even a settlement? It was a settlement, and it was because Congress has the exclusive power to do this. They didn't ask for approval from indigenous people, they just did it and sort of asked for approval afterwards, but the Congress doesn't need any authority, anybody to approve the exercise plenary power. So, that was the settlement. It's a long story. It divided Alaska into 12, not tribes, corporations, and 200 village corporations in each of the villages, and they were conveyed all the land. The villages got the surface, the regions got the subsurface of the land, and then the regions, the 12 regions, were to share the revenue they received from timber and the subsurface resources among all the 12 regions. So, that provided a perpetual means of some money flowing through this system. 70 percent, though, of the revenues derived from those resources had to be shared through all the 12 regions and down from the regions to the villages. And so, you really had corporations here, and instead of tribes, if you will, and I'm beginning to learn a little bit about it as you tell us. Let's take a break and when we come back, I'd like to go a little bit further into what the corporations do as compared to the lower 48s and maybe Hawaii. Yeah, and the tribes do. We'll talk about it. There's a very interesting history. Okay, we'll be right back. This is Think Tech Hawaii, raising public awareness. Aloha and Richard Concepcion, the host of Hispanic Hawaii. You can watch my show every other Tuesday at 2 p.m. We will bring you entertainment, educational, and also we'll tell you what is happening right here within our community. Think Tech Hawaii. Aloha. North to Alaska. We're in Anchorage, as you can see, and we're talking with David Case. We're not really in Anchorage, but we got the Anchorage backdrop because that is what we're talking about. We're talking about Alaska. And David, you've been telling us about the way that the Congress decided to distribute some wealth by virtue of its power to the indigenous people of Alaska. And the reason that happened is because of a little thing called Pruto Bay. Oil was discovered on Pruto Bay, but the Aboriginal title to it hadn't been extinguished. And the pipeline corridor had Aboriginal title burdened with it. So what happens if you take the oil out of the land and transport it across the pipeline and make a lot of money on it, you're in trespass? And the potential trespass damages are all the profits. So there needed to be a settlement of these claims in order to get the oil out of Pruto Bay. Was there actually a law case? Yeah, they sued. They sued to stop the pipeline and to prevent the settlement of these claims without their participation. So you're telling me it's all about the money. And I was kind of hoping it was out of the goodness of the heart of the legislators in the Congress. No, it's all about the money. Okay. And so what do these corporations mean? What does it, and how is it different from the tribes? Well, first it's different because there are corporations and the corporations are not governments. The tribes in World War 48 are all governments on the reservation. They govern the land, they control it, they are the government, and the land ownership and control is unified with the government. The Claims Act separated the tribes in Alaska, which were not thought to exist, from the land and conveyed it to corporations, which are corporations controlled under the state of Alaska in most respects, the laws and the disclosures and so forth, meetings and proxy statements and all that is controlled by state law. But this is one of the important things. The resources were significant that were conveyed to the Alaska Natives. As originally designed, the Claims Act was going to essentially terminate in 20 years and required the stock that the Natives received in these corporations, these corporations that issued stock. But only the Natives who were alive on the date of the settlement, December 18th, 1971. Those are the only ones who got stock. In 20 years, that stock was going to be, it could not alienate the stock. In 20 years, the restrictions are going to be taken off and anybody could buy the stock. And so at that point, anybody, Native corporations, oil outside businesses, could buy the stock and acquire the land and all the Natives would be living on somebody else's property. Well, that was stopped because the Alaska Natives, they learned how, in the Courses of the Settlement Act, in lobbying for it, how to mine Congress. And they were able to go back to Congress and get it changed. So now that the stock is perpetually protected and the Natives' lands are perpetually in their control. The corporations have been a significant players in Alaska's economy, especially the regional corporations. When we wrote the book in 2012, they generated about 25% of the gross domestic product of Alaska in businesses all over the world, about $10 billion a year. And the Indian tribe, in the meantime, have taken over the control of the health system in Alaska, for Alaska Native Health System, built a new hospital and had clinics and all the major hubs and village clinics. And they operate all the Natives operate that separate from the Claims Act. But this is a thing that was made possible. Through the money. No, no, not through the Claims Act money. This is a separate money that is available for Indian Health Services and BIA. And four years after the Claims Act, the Congress passed the Indian Self-Determination Act, which required the government to contract for its services with tribes and groups of tribes willing to take it over. And in the course of the settlement, the Alaska Natives' villages had organized themselves of nonprofit corporations, 12 regional nonprofit corporations, controlled by tribes, which then took over these programs. I see. Now I want to ask you, though. You see how the corporations have run. And how does it compare to the lower 48 and Hawaii? Well, you know, you're talking about different things entirely, really, in many ways. I mean, the lower 48 has good examples of tribal governments, and it has tribal governments that don't work so well. The same thing in Alaska. You'll find the corporations most work very well. Some don't. You know, it's a human institution. But the thing about the Claims Act is it separated the tribes from the land. That's the important thing to realize here. The corporations now have the land. The tribes are what? Yeah. It took 20 years of litigation to conclude that an administrative action by the Department of the Interior to recognize the Indian tribes in Alaska as tribes. And that occurred with a woman named Ada Deer, who had led the Venomani independence movement when she became Assistant Secretary for Indian Affairs. She recognized the Indian tribes in Alaska. But in the meantime, court cases were going on to determine if, as a matter of common law, the tribes existed in Alaska. And about the same time, they reached the conclusion in the federal courts and even the state court, finally, that the tribes in Alaska continued to exist. So you have both corporations and tribes? The tribes do not have any land. So there's a question of what jurisdiction do they have. And the Alaska United States Supreme Court in 1998, that's the correct answer, I think, held that there was no Indian country in Alaska where they tried no reservations. So there was no connection between the tribe and the land for jurisdictional purposes. The very next year, the Alaska Supreme Court reversed 20 years of its own precedent and held that Alaska and examined 200 years of common law precedent and concluded that without land, Alaska native villages as tribes still had jurisdiction over their children. And then we begin from there, what else do they have jurisdiction over? Where does that lead? Well, we don't know. It's a common law. So they take a while to figure it out. And their cases are still being ongoing. And the Alaska Supreme Court has generally afforded more power whenever the time had been asked to the tribes in Alaska to adjudicate child welfare matters, adjudicate adoptions for their children. We don't know to what extent they have jurisdiction over members and non-members for marriages and so forth. But there are just being extended out. How do you know if you're in a tribe? The tribe will tell you. How do you know if you're an American citizen? Your government tells you whether you're a citizen or not. The tribe tells you whether you're a citizen or not of their tribe. They were able to determine that some sort of historical perspective? No, it's their law. Tribes can make their own law as to who will be a member of their tribe. And the United States doesn't participate in that. It's not reviewable in the United States courts. Are Alaska natives also citizens of the United States? Yes. In 1924, before 1924, no Indians were citizens of the United States unless they had met the test of some various civilization statutes that would have been passed. In 1924, all indigenous peoples in America became citizens of the United States under the General Citizenship Act. And so Alaska natives are citizens. But they are also citizens of two countries, essentially. The United States and another government called their tribal government. With respect to the reservation issue, just how does that compare with the rest of the tribes in the United States or the rest of indigenous peoples? Is that a good thing? I mean, it seems... Well, it's a thing. I'm not going to say whether it's good or bad. I mean, that is the structure in the lower 48 generally to have a reservation, which has the effect of combining the tribal government, as I said before, with the land and the resources. And that is potentially a good thing because you have your geographic jurisdiction, as well as any other jurisdiction that might arise out of the tribe itself, jurisdiction over its own members, as I mentioned before, for the Alaska tribes. But the problem is resources. And what the Alaska Native Claim Settlement Act did, it delivered capital and resources to people who generally don't get it, don't get access to capital and resources. And in a capitalistic democracy, that is the key to having power and participation in the government, in the democracy. You have to have capital or access to it. And the Alaska natives got that and made it count. I mean, it was tough work. These corporations were on the skids for the first 10 or 15 years and figuring out how to operate them. But they have done it. And these regional corporations, in particular, have significant economic power and political power within the state. We have a couple minutes left. And I want to just briefly mention a man that you mentioned in your book, Bartolome de las Casas. Who was he? And tell me a little bit about him, maybe, because he seems to be important for some reason. Right. Well, I was just amazed that I discovered, began to research about him. And I didn't intend to do it. But I started to look into his life in this book. Bartolome de las Casas was a Spaniard, a boy of about nine or 10 when Columbus came back from the New World into Serbia, in Spain. And his father, his father knew Columbus. Anyway, long story. Las Casas went over to the New World as a kind of media. He had a control of Indians and they worked for him as slaves, basically. And he was also being trained as a priest. He became a priest, a Dominican friar. But he would accompany the Spanish through their conquest. In Cuba, he witnessed a massacre of an Indian village of men, women, and children, and it flipped a switch. And he just, he renounced all of the Spanish control of those people in that way and began to argue that all people are one. All mankind is one. These people have rights to land and should be treated fairly. And so you, in your book, you find him important because of the way he approaches indigenous peoples throughout the world. And what he said was what he says... All mankind is one. All mankind is one. And these, everybody should be treated the same. All mankind has rights. And that is important not for just indigenous people. As it came to the 20th century and the UN developed a Charter of Human Rights, Las Casas' thought was brought into it. It had been lying dormant for 500 years or so. And the Spanish governments in South America who had been influenced by these thoughts for many years got this incorporated into the UN Charter. All men are created equal. Created equal. For all mankind is one. That's a good way to close our program today and we could certainly use it a lot in our day and age, even today. Words to live by. Good words to live by. David, thank you so much for being my guest today. Thank you.