Price, Monroe E.

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Alaska Natives and American Laws

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BOOK REVIEWALASKA NATIVES AND AMERICAN LAWSALASKA NATIVES AND AMERICAN LAWS. By David S. Case, Univer-sity of Alaska Press, Fairbanks, Alaska, 1984. pp. xxii, 586. $25.00Reviewed by Monroe E. Price*One of the most important attributes of a serious survey work isthat it contains a perspective on the field of law under examination.Because no survey can be totally comprehensive, it must contain,whether it is obvious or subtle, an agenda, a vision, an understandingof the way in which law interacts with the historical evolution of aparticular area of activity. This is true whether the treatise is abouttort law, employment discrimination, or, like David Case's importantwork, about Alaska Natives. In the short run, the value of a treatise isin the cases and statutes it cites and its worth as a reference book; inthe long run, it is the vision, the agenda, the perception that signifiesthe importance of the work.David Case has chosen a definite vision and perception in thewriting of Alaska Natives and American Laws. I It is a strong vision;whether it is a correct vision will be answerable only in hindsight. Thegamble concerning vision is so important and fundamental to a trans-lation of the past and an extrapolation into the future, that it is impor-tant to dwell on that vision as a means of understanding the book.Case's vision is one of Native communities in Alaska, strugglingto maintain their cultural integrity, resisting waves of populationchanges and legislative disturbances, aspiring to reassert their powerand authority, their subsistence lifestyle and their communal self-definition. It is not a vision of the impact of modern corporate lawunalterably changing the course of Alaska Native history.As in a vast painting, where the iconography is complex, themethod of understanding Alaska Natives turns on what is excluded aswell as what is included in the book. Decisions concerning emphasis,Copyright © 1985 by Alaska Law Review* Dean, Benjamin N. Cardozo School of Law, Yeshiva University.I. D. CASE, ALASKA NATIVES AND AMERICAN LAWS (1984) [hereinafter citedas ALASKA NATIVES].ALASKA LAW REVIEWspace, or the density of figuration distinguish what the author consid-ers to be important. To understand Professor Case's book, as anybook in which history is important to the written legal analysis, wemust know how to read history. What is dominant or considered to bedominant in that history? What are the telling turns of events? Whatare the precursors of substantial change? What are the values that areseemingly preserved and what are those that seem subject to change?Law is a guide to history and history is a determinant of law. Changesin Indian policy, more so than in other areas of the law, are primeexamples of the interaction of law and history.This interplay of law and history, as applied to David Case's anal-ysis of the impact of American laws, reduces Case's inquiry to onesuccinct question: What was the historical importance of the AlaskaNative Claims Settlement Act (ANCSA)?2 How revolutionary was it?To what extent is it becoming the dominant ordering principle of thefuture of Native peoples in Alaska? In a book on the relationship be-tween American laws and Alaska Natives, should ANCSA occupycenter stage? Should its complexities, the intricacies and subtleties ofits relationships with prior law and practice be the focus of discussion?The answers to these questions depend to a great extent on one's visionof, or perhaps one's hope for, the future.In Alaska Natives, Professor Case portrays a version of ANCSAin which its cultural and legal influence is important but not determi-native. Its significance in terms of its impact on the life and times ofthe people of the state is only minor. Case construes ANCSA as nar-rowly as possible. The effort is made, perhaps successfully, to viewANCSA solely as a land settlement with almost no implications forquestions of Native subsistence or sovereignty. If cultural survivalturns only on subsistence and sovereignty, and if ANCSA can be suc-cessfully interpreted as only a land settlement, then Professor Case iscorrect about ANCSA's minor cultural and legal influence. If, how-ever, ANCSA is far more pervasive and more difficult to limit thanProfessor Case construes it to be, and as many believe it to be, then thebook is important, scholarly, vital as a reference, but wrong in its cen-tral thrust.This sideways dealing with its theme should not detract from thegreat contribution to law and understanding that Professor Case'sbook represents. For the lawyer and scholar fortunate enough to beinvolved in the complexities of the Alaska Native experience, thisbook is an absolutely necessary reference. The treatment of the issuessurrounding the subsistence lifestyle of Alaska Natives is one exampleof Case's contribution. Subsistence has historically been one of those2. 43 U.S.C. §§ 1601-28 (1982).[Vol. 2:435ALASKA NATIVESsubjects that has been pervaded by passion and political concerns ofthe highest order. How the Native community maintains its hold onthe stuff of subsistence in a society that is destroying the land is funda-mental to the future of the Native people.Professor Case provides a thoughtful, thorough, and analyticalsetting in which the debate over subsistence can take place. The booksets forth a kind of tripartite analytical foundation for understandingsubsistence: economic or physical reliance; cultural and social value;and the role of custom and tradition.3 The author recognizes the diffi-culty in applying traditional reservation-based law to the preservationof Native subsistence values4 and, as a consequence, ingeniously buildsan alternative foundation for the assertion of such rights.The essential basis of this alternative approach lies in federal pre-emption of state laws dealing with subsistence. This federal preemp-tion results from international treaties and similar actions, statutes,and regulations. The material on treaties is particularly thorough,gathering useful information about migratory bird treaties, fur sealand whaling doctrines, and the Polar Bear Convention. 5 The discus-sion of federal statutory preemption 6 contains very useful treatmentsof the Marine Mammal Protection Act,7 the Endangered Species Actof 1973,8 and the Reindeer Industry Act,9 among other statutes.Ultimately, however, Case must confront the question of whetherthere is a basis for a doctrine that specifically protects Native, quaNative subsistence rights. He points out that "the federal trust re-sponsibility doctrine related to Alaska Native subsistence is still devel-oping," 0 although he nevertheless recognizes that "Native off-reservation subsistence uses under recent enactments are not generallyexclusive rights, but are exercised in common with other similarly sit-uated (i.e., rural) Alaska residents."" The importance of this recogni-tion is accentuated when Case discusses the culmination of federalsubsistence legislation, the Alaska National Interest Lands Conserva-tion Act (ANILCA).12 He concludes that "bowing to present daypolitical reality, ANILCA established subsistence protections for mostrural Alaska residents - Native and non-Native."' 3 Section 803 of3. ALASKA NATIVES, supra note 1, at 275.4. Id. at 278.5. Id. at 280-86.6. Id. at 285-92.7. 16 U.S.C. §§ 1361-1407 (1982).8. 16 U.S.C. §§ 1531-43 (1982).9. 25 U.S.C. §§ 500-500n (1982).10. ALASKA NATIVES, supra note 1, at 293.11. Id. at 294.12. Id. at 298; 16 U.S.C. §§ 3101-3233 (1982).13. ALASKA NATIVES, supra note 1, at 299.1985]ALASKA LAW REVIEWANILCA, in defining the subsistence uses to be protected, speaks of"the customary and traditional uses by rural Alaska residents," 14 notof Alaska Natives.The book does not deal extensively with the potential threat tosubsistence created by the privatization of public lands, which involvesthe granting to Native corporations of fee patent to lands that wereonce open for entry for subsistence purposes without the danger oftrespass. As some Native corporations become more involved in landdevelopment and more inextricably involved in ownership and domin-ion,15 additional threats to subsistence patterns are more likely to arisefrom the implications of ANCSA itself.The discussion of subsistence is an example of both the strengthand the weakness of Professor Case's treatment of the federal preemp-tion issue. Without doubt, the work presents the fullest available ex-ploration of the legal basis of subsistence and the context in whichsubsistence law develops. On the other hand, Case is reluctant, per-haps appropriately, to recognize how fundamentally corrosive the en-actment of ANCSA might be to the perpetuation of subsistence values,and, as a result of the change in federal law, how the subsistence rightsof Alaska Natives become intertwined with the subsistence rights ofother rural Alaskans. Substantial dangers exist in the evolution of alegal framework in which the Alaska Natives do not reap the exclusivebenefit from the enactment of federal legislation. More significantthan the legislative dangers, the conveyance of lands to the NativeCorporations, which have Indian sponsorship and a nominally Nativedirection, will ironically pose a threat to subsistence.The author's treatment of sovereignty issues presents similarlyfundamental questions where the viewpoint of the book is telling. Pro-fessor Case takes a forthrightly minimalist view of the impact ofANCSA on tribal sovereignty. Indeed, the book is an exceptionalbrief articulating the case for retained sovereignty and the prospect forits exercise. For Professor Case, "the cultural significance of Nativeself-government appears to lend a sense of urgency to Alaska Nativeclaims to 'sovereignty.' ",16 The lynchpin of the argument is that "asto Native rights of inherent self-government," it is incorrect to assumethat ANCSA "extinguished every aspect of special Native Americanstatus in Alaska." 1714. Id. at 300 (quoting 16 U.S.C. § 3113 (1982)).15. For example, Native corporations may become involved in programs of recon-veying lands to individual shareholders.16. ALASKA NATIVES, supra note 1, at 435.17. Id. at 447.[Vol. 2:435ALASKA NATIVESProfessor Case recognizes that ANCSA does "cast substantialdoubt on the practical exercise of [Native] self-government." 18 Underthe standard nineteenth century federal settlements with Indian tribes,"an ownership interest in the land and substantial governmental au-thority over it were both confirmed to the tribal government."1 9 Bycontrast, in Alaska ownership of land has been severed from the kindsof entities that might have the best argument for governing it and cre-ation of organizations that would have clear governing authority hasbeen avoided.Because the Alaska setting is not typical of those federal-Nativerelations in which sovereignty has been established, a careful substi-tute structure for asserting sovereignty must be built. There has to bea conceptual severing of land ownership from the power to rule, aconceptual step that has some, though not a totally convincing, basisin Supreme Court decisions.20 Professor Case finds great significancein the self-determination legislation passed by Congress in the 1970's,and calls ANCSA itself "the first in a line of. . .major pieces of self-determination legislation. ' 21 Still, words can be deceiving; it wouldnot be the first time that actions destructive to sovereignty werewrapped in the flag of palliative charity. Furthermore, little inANCSA is self-determinative; one of the major efforts of the Nativecommunity continues to be obtaining statutory declarations thatANCSA is neutral on the subject of retained sovereignty.The bright spot in the sovereignty debate has been the AlaskaSupreme Court, as Professor Case acknowledges. 22 And it may welloccur that the state comes to understand that delegated sovereigntywill be helpful to Alaska in dealing with difficult issues of governancein the rural parts of the state. Recognition by the state that it hasmuch to gain from a strengthened relationship between the Nativecommunity and the federal government would allow a flowering ofnew strength in the relationship.These are times of great change in the way Alaska Natives per-ceive themselves and in the way they will be considered under federallegislation. As the end of twenty years of special status of native cor-porations under ANCSA approaches, and as the Native communitycomes to grips with altered possibilities in the post-1991 era, untoldnew complexities will develop. How revenues are shared under Sec-tion 7(i) of ANCSA, how the dialogue concerning sovereignty goes18. Id.19. Id.20. Id.; see, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Jones v.Meehan, 175 U.S. 1 (1899).21. ALASKA NATIVES, supra note 1, at 449.22. Id. at 455.1985]440 ALASKA LAW REVIEW [Vol. 2:435forward, how the cultural needs of the Native community will bepreserved, how taxation of resources will be treated - this will be thenew agenda. Professor Case's book will be a helpful preface to thisevermore intricate context of law and reality.

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