Robert Anderson has posted “Sovereignty and Subsistence: Native Self-Government and Rights to Hunt, Fish, and Gather After ANCSA,” forthcoming in the Alaska Law Review, on SSRN.
The Alaska Native Claims Settlement Act (ANCSA) was passed in 1971 to extinguish aboriginal rights of Alaska Natives and provide compensation for those rights extinguished. Instead of vesting assets (land and money) in tribal governments, Congress required the formation of Alaska Native corporations to receive and hold these assets. A major flaw in the settlement was the failure to provide statutory protections for the aboriginal hunting, fishing, and gathering rights extinguished by ANCSA. Moreover, while ANCSA did not directly address Alaska Native tribal status or jurisdiction, the Supreme Court interpreted the Act to terminate the Indian country status of ANCSA land. Subsequently, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) was adopted in 1980 to provide a subsistence priority for rural Alaska residents, but the approach contemplated in Title VIII failed due to the State of Alaska’s unwillingness to participate. On the self-government front, state and federal courts have joined the federal Executive Branch and Congress in recognizing that Alaska Native tribes have the same legal status as other federally recognized tribes in the lower forty-eight states. The Obama Administration recently changed its regulations to allow land to be taken in trust for Alaska Native tribes, and thus be considered Indian country subject to tribal jurisdiction, and generally precluding most state authority. This article explains these developments and offers suggestions for a legal and policy path forward.