Willie Hensley

The issue of Native claims has been around a long time, long before we came around. It’s just that very few people really understood the nature of it and we were all in the same boat in 1966 when I returned from George Washington University. This is why I want to take this occasion to compliment the school district for deciding that Alaskan history is valuable and that they should teach it. Give Carol Comeau a raise! The other thing I would like to request is that we mandate Alaskan history as a requirement for graduation from high schools. If we screw around and make it a general request, the educational establishment will not respond and I speak from experience on that. Alaskan history is fascinating and Alaskans are proud to be Alaskans. When we go around the world, we should be able to cite our history, chapter and verse.

Anyway, when I got out of George Washington University in January, 1966, I went straight to Fairbanks to do some graduate work and one course my guardian angel led me to was taught by Jay Rabinowicz. I think there were like eight or 10 of us in there. Mike Bradner was one of those. It was a course in constitution law, and Doctor Rabinowicz was wonderful. He said write a paper on any subject of a legal nature that interests you, so I decided to write about who essentially owns Alaska; to paraphrase Governor Hickel’s book, Who Owns Alaska? I was curious about it from the standpoint of the Native people, having been raised in the hinterlands. We were still living in sod houses. People were intimate with the land, but it wasn’t as if we had a piece of paper that said, this was our land. We didn’t think in those terms, and I began to see that there were some little crusts on this issue of Native lands along the highway—this was seven years after statehood, and the state was beginning to make its selections under the Statehood Act and the Indians in the Interior were saying, “You can’t select this land because this is our land.”

I wanted to know what this history was, so I thought I’d read this little paragraph for you that I wrote 35 years ago. It said: a controversy of immense proportions is rapidly coming to a head in Alaska. It is a situation which has laid dormant since Alaska’s purchase from Russia in 1867. This problem has been skirted by Congress, alternately grappled with by the Department of Interior, then dropped to allow the furor to settle, kept Alaskan political leaders frustrated and the courts have ruled time and again but never with finality or clarity. The problem is simply this, what are the rights of the Alaska Natives to the property and resource upon which they have lived sine time in memorial. Two extreme positions may be taken on this issue by those unacquainted with the legal complexities of the problem. The two positions are held by both Natives and non-Natives. One holds that the Alaska aborigine is simply a citizen of the United States and of Alaska with no more rights than any other citizens, therefore, has no more right to land than Alaskan settlers arriving later. The opposing view holds that the Alaskan Indians, Eskimos and Aleuts, due to their habitation and use of natural resources have been “aboriginal titled” to land and its products which cannot deprive them without their consent.

The problem is, of course, much more complex than is indicated above. It is politically volatile, an administrative tangle and a judicial granny knot that has been clouded by various opinions of courts at different levels. So I went back and looked at court cases, going back to Justice Marshall. I looked at the Treaty of Cession, the Organic Act of 1844, and subsequent Acts by Congress, and other court cases. I came to the conclusion in that little paper that we still owned it, technically speaking, but it wasn’t as if we had a piece of paper that said so.

Aboriginal title had some basis in the law but it didn’t rise to the level of clear title where one can lease, buy and sell lands. In 1867, there was very little in the Treaty of Cession that was helpful. Basically the Treaty said that the Native people of Alaska should be treated as other tribes in the United States were being treated. Of course, the problem at that time was they were wiping out the Indians down there. They stopped dealing with treaties in 1871 so we never had any agreements or contracts, treaties that would help clarify where we were.

In 1884, Congress passed the Organic Act, which was really designed to give the White people, the prospectors and miners some legal title. Otherwise, it was pretty much the law of the west -- you know, whoever had the biggest gun. But there was one provision that provided for the protection of the use and occupancy of any land by the Native people or lands claimed by them. In this instance, my feeling was that from the standpoint of use and occupation, we inhabited, used, occupied, and controlled literally all of Alaska. So the Secretary of Interior, who was the chief bureaucrat who was supposed to convey the 104 million acres to the new state was also the guardian of Alaska Native interests, whatever they might be. They were undefined in 1966.

That sort of set the stage for the controversy that developed. Alaska wanted its land, we wanted our land, the environmentalists wanted their lands, the oil companies wanted their pipeline and there was something in it for everybody. It looked like an almost impossible situation but the reality was that in five short years, this complex piece of legislation was put together and passed by Congress. I think there is a tremendous story there. It would make a great novel, actually. There was, of course, as with anything of this nature, some unhappiness because Alaska is a big state with many different groups of people. Most of us didn’t know how the others lived, hundreds or thousands of miles away, but yet we were able to focus our energies for a solution that was very unique and very controversial. I think it would literally take a war to convey this kind of land in modern days and historical times, yet we were able to do it peacefully. Alaskans were able to come together. Had the Chamber of Commerce known back then that this Native land would be about the only land available to develop, they probably would have helped us get all of Alaska back. Thank you.