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JEFF KENNEDY: This week on Potlatch, Fairbanks lawyer, Barry Jackson, comments on the land claims act.

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JEFF KENNEDY: Fairbanks attorney Barry Jackson represented the Alaska Federation of Natives in its campaign to settle the aboriginal claims of Alaska Natives.

On this program, Jackson looks back on the settlement alloting 40 million acres and $962.5 million dollars for the Natives of Alaska.

BARRY JACKSON: We wanted to be able to deal with the land without any interference from the Secretary of Interior. And so we insisted on a fee simple title.

We were insistent from the beginning that the federal government and the state should not own the mineral rights under the land that would be received by the Alaska Natives in the settlement. This was another reason why we talked of fee simple title.

From about 1967, we concluded that since Natives had always owned land in common, and that it was in a sense corporate ownership, that we would use the corporation as a device for holding title to the land.

There were a number of reasons for this. In the South 48, if you did not have reservations the standard means of settling a Indian claim was to put a price on the land. And after appropriation of the dollars by the federal government, dividing up the money and handing it out. Say, $10,000 dollars to each Indian.

The money rapidly normally would be spent. And a few years later there would be no real change in their circumstances.

Another method that had been used in the old days was to what is called "allot the land." Under which, each Indian would receive 160 acres and the federal government would engage in a program to turn them all into farmers. This program was also unsuccessful.

And because the land was taxable, ended up in about 40 million acres of Indian lands in the South 48 passing into non-Native ownership. Non-Indian ownership. Over about a thirty-year period.

We did not want that either. It was in response to that sort of thing that the concept of "trust title" evolved. But, that has not practical because it meant that you did not have any economic control of the land.

And you were still dealing with land in individual ownership in a sense, even though the trust title was held by the Secretary (of the Interior).

We wanted to get away from that. We felt that land had been held in common by Indian groups, and we wanted to continue that by using the corporate structure.

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BARRY JACKSON: I think it's fair to say that there are needless, complex provisions in the Act. The 7(i) clause under which corporations -- regional corporations have to share the profits of the subsurface of their regional lands with effectively all other regional corporations, and through them to the individual shareholders of all of the corporations.

And also share any surface timber resources which a regional corporation may have. Is needlessly complex. Partly because the -- the staff members of Congress who drafted it didn’t understand the situation and did not understand the complexities of the problems they were creating. It's about twelve words in length and is creating a tremendous amount of litigation.

On the other hand, you have to remember that for the first time we were attempting not to follow very simple methods of settlement that had been used in the South 48, such as handing out dollars, or handing out 160 acres to every Indian.

But to create a structure that would be effective in a fairly complex society. In which would mean -- the means of the Alaska Natives having effective self-determination over their property. And to do that did require a great deal of detail in the legislation. (phone rings)

When we first came up with a basic pattern of corporations, land selection, which was again a unique Alaskan idea, and the profit-making corporations, the stock and so on, we were told it was needlessly complex and that Congress would not be able to understand it.

And that we oughta go back to the old system of simply handing out dollars. Or going to the Court of Claims and getting dollars. And again, handing them out to individuals.

The Alaska Native leadership recognized that those types of settlement that had been used in the South 48 had failed and that we needed a new approach.

And we insisted on a fairly complex solution to a very complex problem. I don't think there's any way of getting around that sort of complexity.

But there are the provisions in the Act as to federal land being -- going into the four systems, for example. And certain other provisions that are extremely difficult. And some of them are needlessly complex.

JEFF KENNEDY: On a previous Potlatch program, a recruiter for the University of New Mexico Indian Law Program, Sam DeLoria, suggested that the relationship between village and regional corporations may be needlessly complex. Barry Jackson responds.

BARRY JACKSON: I really don't agree, because the idea behind the structure of the village and regional corporations was that the -- the village corporations would - like the regional corporations - be free of federal supervision and control.

Now, for a limited period and for limited purposes, the regional corporation does have a responsibility of oversight over village corporate affairs.

We put that in the regional corporation, because if we had not put it in the regional corporation, Congress would have insisted on putting it in the Secretary of Interior. And we did not want the Secretary involved.

But once that initial period is -- is over, then the villages -- the village corporations are free to go their own way. Now, if they want to voluntarily by cooperation get together with other village corporations or with a regional, and by contract develop a relationship they can.

But in my opinion, the village corporations are going to be independent legally. I hope they do follow a cooperative type approach, because they need it because many of them are so small that they will not be economically viable entities unless they do cooperate.

At the present time, we don't have that many people, either at the staff level or on the boards of directors to adequately provide the expertise that is needed in the average village corporation.

And I think we recognize that. A result of this, together with the fact that the -- the village corporations have very little money to work with and need to combine to get economic viability, has resulted in a move towards merger in several of the regions.

In the Interior, Doyon has in effect sponsored the formation of the Interior Village Associations, which will be controlled by village corporations and which will provide expertise and staffing and centralized office services for village corporations in the Doyon region.

There are moves on in other regions for a number of village corporations to get together and work together in the same way. I have also seen instances of village corporations - two or three them getting together - to jointly invest in a -- in a particular enterprise.

All of these sort of developments are needed. There's no single pattern, I think, that will be established statewide, but a number of different devices will be used.

JEFF KENNEDY: The concept of a corporation has been criticized as an attempt to impose Western culture on Natives. Jackson comments.

BARRY JACKSON: I think that criticism is made by people who do not understand corporations. Because even though they may be while people, they don't -- and they don't function in corporations and they have no idea how they really work.

In fact, there have been studies made. One is called the "yam factor." Which compare tribes and the way the governmental structure or the power structure within the tribe operates with the way the power structure within a corporation operate. And there are many similarities.

In fact, except for the fact that it is a word, "corporation," the way corporations function is very similar to the way the Native organizations - whether they are traditional councils or IRA corporations, which they have had for a number of years.

Or even the completely unorganized prior to the white man. I shouldn't say completely organized -- unorganized, they are not. But the way these societies functioned in the past, is very similar to the way corporations function. The way land is held. The way decisions are made internally. And so on.

And I think that they will adapt to it readily. And perhaps more readily than the average white man would to functioning in a corporation.

JEFF KENNEDY: I asked Jackson to account for differences in cultures of Alaska Natives and Lower 48 Indians.

BARRY JACKSON: There are obviously differences between the patterns of the culture among various Indian groups in Alaska.

For example, the Tlingits are known as the diplomats and the orators. And they have a long tradition of this. They also probably had the most highly sophisticated culture of all Indian groups in North America. At least, north of -- of Mexico.

On the other hand, some of the Eskimos groups lived in very small family groups essentially, and had a minimum amount of social structure because they didn’t need it.

Now, despite that, you find that Eskimos readily adapt to airplanes. Make excellent airplane pilots. Excellent mechanics.

And have done very well politically within the state. And they function very well in the state legislature, for example.

I don't think that the fact that they grew up with perhaps a culture that was limited because of the fact that they existed in -- in family groups meant that they did not have a great deal of intelligence and ability to function in a more complex society. They have shown that they can.

Trying to simplify the Act at the present time runs into a legal problem of vested property rights. And it's very simple.

If you have a legal right to a piece of ground and you own it and that may be seen to be part of a needlessly complex pattern, they still can’t take your land away from you without paying you fair value for the property right.

In many areas of the Act that are -- that are needlessly complex, in my opinion, and which are not the fault of the Native leadership, because we didn't put that complexity into the Act.

The property right problem prevents, I suspect, effectively simplifying the pattern.

But I think a great deal can be done at a voluntary level. And this is being explored by the regional corporations today.

And I think that such cooperation can simplify the practical effects practically. The effects of the Act.

We really have a great deal of freedom under the Act. I suspect, for example, that if it appeared desirable to dissolve a regional corporation and transfer the property into some other form of organization, it could be done at some point without any approval of Congress. And without any interference by government.

Legally, for example, there's nothing to prevent regional corporations from selling off every bit of their land, converting it into cash, and dissolving the corporation. Handing out the money to every individual Alaska Native.

We could probably give every Alaska Native $10,000 dollars or more if we did that. But, of course, we'd be right back in the -- in the sort of problem that they've had in the South 48. So, we -- we know that is not going to be done.

But, the flexibility of the corporations in terms of what they can do is very great. And there's nothing to stop them from sponsoring other types of organizations.

And, indeed, they have been. We expected to use, and we will use, every form of organization that's available under our legal system to accomplish the -- what is needed for the Native people.

One change I would like to see made would be to extend the period during which stock cannot be sold.

Remember, we are here attempting to go far beyond Indian settlements in the South 48, where they attempted to make Indians consumers and workers. And earlier, farmers.

Here we are attempting to go even beyond investment into ownership to make Indians, and Alaska Natives generally, owners of very large aggregations of assets, land and money. And economic enterprises.

This is far beyond anything that we've ever seen in this country. And perhaps even in the world.

And it's going to create quite a bit of -- it's going to require quite a bit of time to create an ethic of ownership and a sense of responsibility.

The sense that this property has to be passed down to future generations And is not simply something you have a right to sell in order to build yourself a house. Even though that may be very much needed.

So, we had originally thought in terms of the stock not being available for sale by an owner for 100 years. I think we would've settled for fifty and Congress only gave us twenty.

I think that period needs to be extended to fifty years.

A more critical problem is that the land that is undeveloped is subject to taxation after twenty years.

And in my opinion, all land in Alaska that is undeveloped should be exempt from taxation as a matter of public policy and good conservation. Forever.

Whether it's owned by Alaska Native corporations or whether it's owned by anyone else. It may be necessary to provide a tax roll-back on land when it is developed, but we should not put economic pressure on landowners to develop land that ought to be left in its natural state.

If Alaska starts taxing 40 million acres, in 1991, it's going to require the corporations to come up with, in my estimate, at least $40 million dollars a year to pay taxes.

Such a heavy burden of taxation is, first of all, unreasonable. It's unfair when you consider that undeveloped land by the state and federal government is not subject to any taxation.

And the strategies will have to be followed by the corporations in order to raise that kind of money.

In my opinion, it is not going to be good for society or the state. It may mean premature development of land, premature leasing of land. Conceivably, even selling of land in order to raise the money to pay the taxes.

And yet, in fact, society and the world needs to have the great bulk of Alaska Native lands left in the wilderness land bank of the world for centuries to come.

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BARRY JACKSON: It often seems to be overlooked that the Alaska Native Claims Settlement was essentially created -- the pattern, the design, was created by the Alaska Native leadership and then was, in effect, lobbied through Congress and through the administration. Sold to Congress as it were.

That it was not imposed by the government on Alaska or on the Alaska Native people. It was a tremendously complex piece of legislation that was developed by the leadership.

It was a very brilliant exercise in democracy. Showing how a very small group of people can accomplish a great deal through the American political process.

We put together a coalition of interests. Some of which really had no great love for our position, but they knew that they had to assist us in accomplishing what we needed in the settlement in order for they to get their pipeline, for example.

We -- we got all but one Texas congressman, of their delegation, to vote for the bill. There are very few Indians in Texas.

The -- the work that was done was fantastic, and I attribute it to the sophistication of the Alaska leadership, and their ability to function in the political process because they had been trained in the Alaskan political scene. Many of them had served in the state legislature. Others had been politically active.

They were prepared to deal with the administration as equals. They were prepared to deal with the Congress without fear. And they did so.

It was a fantastic thing, and the like of which, frankly, the Congress and Washington, D.C. had never seen before.

I think there should have been more money and I think there should have been more land. What I think have been equitable? 60 million acres, 80 million acres. These are reasonable figures. Two or three times as much money.

But while that might have been more equitable, we had to face the political realities of the time. We had an opportunity window, as it has been said by others, through which we could drive, in a short period of time, a basically equitable settlement and one which would meet the needs of the Alaska Native people.

If we'd tried earlier and been successful, we would not have received as much land or money. If the pipeline had gone before the settlement, again, we would have lost political muscle, which would've meant, again, less money, less land, and very likely, less self-determination.

The Alaska Native leaders were in 1967 very much disenchanted with the way the federal government had carried out its trust responsibilities for Natives and for Indians in the South 48.

While trust sounds great, the net effect of it was they did not have self-determination. They were tired of not being free.

They felt they should be able to manage their own assets. They felt they had the talent in Alaska and a sophistication of leadership needed to do that, and, I think, essentially, they were right.

To the extent they did not have, they felt that they could develop it in a short period of time. And I agree.

We are going to have problems. If you have the right to sell property, you may make the wrong decision. If you hire people to manage your companies, whether they are Native or non-Native, you may make some foolish mistakes.

You may place your trust in people who are untrustworthy. But this is a learning process. And I think the Natives, both at the leadership level and at the shareholder level, are learning very fast.

And while there is going to be some loss of property because they make mistakes, while there may be a few people who rip off the corporations, I think the overall result is going to be far greater than if we had simply taken all of this land and all of this money and given it to the BIA and say, "Now, you do what's best for the Alaska Native people."

There are many people in the Bureau of Indian Affairs who really are outstanding bureaucrats who are very much dedicated to the welfare of the Indian people.

As a matter of fact, the Alaska Native Claims Settlement could not have been established, if it had not been, I suspect -- if it had not been for individual bureaucrats within the Bureau of Indian Affairs who stuck their necks out far beyond their legal duty to assist us.

That said, the Bureau of Indian Affairs is like any other bureaucracy that is subject to a bureaucratic imperative that the retirement benefits of a bureaucrat, his salary, his prestige and so on is all dependent upon the number of people that he employs in his agency. And the amount of jurisdiction he has.

Moreover, if a bureaucracy were to actually solve a problem, then everybody in the -- in that particular agency would be out of a job.

So, I suspect that there's sort of a game being played in bureaucracies, generally. "Look, I will help you, as long as you don't get well."

That problem is not a problem just at the BIA. It's a problem of bureaucracies generally.

And no matter how much good people work for a bureaucracy, they're going to be subject to the pressures of the -- of the imperative of the institution. And it's not responsive to the people. It is not directly accountable to the people that it's serving.

And although a great deal has been done in recent years towards giving Indian groups a greater measure of self-determination under BIA programs, we still have a long way to go.

And, on balance, I think the Alaska Native leaders and the people prefer the present system then turning the land over to the BIA to administer.

The fact that there will be rip-offs does not surprise me. This is a fact of life. Human beings are fallible. Evil exists in this world. People sin.

On the other hand, I think there is more accountability in an Alaska Native corporation, where each -- each office holder, each director, is responsible to a large number of shareholders who have equal ownership, many of whom he is related to.

And he was elected because he said he was going to take care of their interests.

When you get the Lockheed Corporation, when you get to the Pennsylvania Railroad, you simply do not find in the directors that sense of responsibility or interest in the personal affairs of the shareholders.

You have a great deal more divorcement from their interests. As a matter of fact, in corporations like Lockheed and Pennsylvania Railroad, effectively, the board of directors is selected by the top management. The president, the vice-president and so on. Because they see that friendly directors are elected.

And you frequently get into the situations that have happened in corporations like Pennsylvania, which went bankrupt.

Lockheed, which paid millions in bribes, and yet which was bailed out by the federal government to boot.

I don't think you're going to see that sort of a problem in the Alaska Native corporations, because of the very democratic structure that exists within the corporations.

Because there's going to be more knowledge available to the shareholders in the first place, and secondly, the shareholder is going to have a more -- a greater sense of identity with the corporation and a more concern.

Now, the average shareholder in, let's say, Pennsylvania Railroad, when he got the feeling that things weren't going too well, he simply sold out. He sold out his stock.

That's not going to happen. Dissident shareholders in Alaska -- in Alaska Native corporations, are going to fight to get people they trust on the board of directors if they think that things are not going well.

I think, it's going to be somewhat different from the South 48.

JEFF KENNEDY: That was Fairbanks attorney Barry Jackson. This is Jeff Kennedy. Thanks for listening to Potlatch.

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