Native use and administrative areas in Alaska established by executive order and special acts of Congress 27,600 reindeer in the Kotzebue Sound area. * 1,200 reindeer in area adjacent to north and east shore of Norton Bay. Data on administrative-native use areas in Alaska, Bureau of Indian Affairs School, hospital, and administrative sites____ 131 32 Native use areas, under act of May 1, 1936 (49 Stat. 1250 (including 7 Native use and administrative areas established under special acts or Executive orders (able to determine that 5 were established pursuant to act of May 1, 1938 (52 Stat. 573))‒‒‒‒‒‒‒ 17 Schools and reserves transferred to local school districts___ 16 726 Data on administrative-native use areas in Alaska, Bureau of Indian Reindeer reserves: Cape Denbigh (Executive order), 48,000, March 30, 1901. St. Lawrence Island (Executive order), 1,205,000, January 7, 1903. 99 school and administrative reserves (no data available for 26). 17 native use and administrative reserves---. Total__ 4 reindeer reserves_-. Total_ 13, 015. 52 1, 640, 470. 00 1, 346, 959. 00 3, 000, 443. 82 -1, 269, 057. 75 4, 269, 501. 57 77 of the 99 school and other administrative reserves were withdrawn before 1931 when the administration of schools was transferred to the Bureau of Indian Affairs. Senator CORDON. Mr. Barney. DEPARTMENT OF JUSTICE STATEMENT OF RALPH BARNEY, CHIEF, INDIAN CLAIMS BRANCH, LANDS DIVISION Mr. BARNEY. I am a lawyer with the Department of Justice and in general have charge of all Indian claims that have been filed against the United States, including those from the Claims Commission, Senator Jackson. I think perhaps, Mr. Chairman, I might give the committee an overall picture first, and then if you have specific questions, I will be glad to answer all that I can. The CHAIRMAN. You are in the Division of the Justice Department headed by Perry Morton? Mr. BARNEY. Yes, sir. The CHAIRMAN. He is from Lincoln, Nebr. Mr. BARNEY. Yes, sir. There have been 10 claims filed in the Indian Claims Commission by the natives of Alaska. The CHAIRMAN. Under the so-called Claims Commission Act? Mr. BARNEY. Under the Indian Claims Commission Act. There are 3 cases pending before the Court of Claims, 1 which I will speak of specifically, the Tlingit and Haida which was brought under a special jurisdictional act of 1935, and 2 which have been brought in the Court of Claims under what was section 24 of the Indian Claims Commission Act, permitting the filing of suits in the Court of Claims which arose subsequent to August 13, 1946. I am unable to tell you gentlemen the exact area claimed by the natives of Alaska under the Indian Claims Commission Act because many of the petitions have been filed by the natives themselves without benefit of lawyers, and hence they are just "You took our land and we want to get paid for it." So I cannot tell you the area. One has already been mentioned here by Mr. Critchfield, that is involving St. Lawrence Island. The Gambell native village has sued. That is case 284 before the Indian Claims Commission. They have sued for the identical acreage which has been testified to here, 1,205,000 acres, and they claim that the United States took that land by the creation of this reindeer reservation which Mr. Critchfield has referred to. That claim is based, according to the petition, on the aboriginal use and occupancy of the natives of St. Lawrence Island. The CHAIRMAN. Do they have the benefit of an attorney? Mr. BARNEY. I am sorry, sir, I cannot answer that question from memory. I believe they have, but I didn't bring the petition with me. I can check it and put it in the record, if you would care to have it. There is one other case, the Unalakleet, that is case 286. That involves a reindeer reservation of 64,000 acres, which, it was alleged, was set aside by an Executive order of January 7, 1903. All of the claims, Mr. Chairman, in the Indian Claims Commission are based on a claim of aboriginal right or title. Senator JACKSON. Right at that point, there is nothing in the Indian Claims Commission Act that gives the right to an applicant to lay claim based on aboriginal right, use or occupancy. Mr. BARNEY. You are correct, sir. The words aboriginal occupancy, aboriginal title, or any equivalent words are not in that. Senator JACKSON. The reason I am familiar with the legislative history is that we held hearings on this question of Indian claims to deal with the problem in Alaska. It was my recollection after a lot of thought and a lot of research that we found that it was a matter entirely without the scope of what we were trying to cover. We were dealing with the alleged violation of treaties. We found that this question in Alaska, as I recall, stemmed way back prior to our acquisition from Russia. They lay claim to their use and occupancy of certain areas of Alaska that they maintained was their property before the Russians came in. And the Russians recognized it partially. Then when we bought from Russia, they still had that same property right that they had held on to all during the years. Therefore, we could only get what the Russians had. Am I correct in the general philosophy of it? Mr. BARNEY. Yes, sir. Senator JACKSON. I do not see how they could have any claim under the Indian Claims Commission Act. Senator CORDON. May I inquire, Mr. Barney, as to what if any action the Claims Commission has taken with respect to the jurisdictional question? Mr. BARNEY. I don't quite understand. Senator CORDON. Well, did they deny jurisdiction on the ground that the claims are not within the act? Mr. BARNEY. We have not reached any of the Alaska claims as yet, Senator. There were 370 numbered claims filed before the Indian Claims Commission. Some of the petitions were very lengthy. They included anywhere up to 8, 10, or 15 separate causes of action. They have now been broken down, for practical purposes, so that we actually have 425 cases before the Commission, and we just have not gotten to the Alaska cases. I would like to go back, however, if I may, for a second, in explanation to Senator Jackson. I am quite aware of the fact that the Indian Claims Commission Act does not say anything about aboriginal possession, Senator. Unfortunately, it does permit any group, tribe, band, or identifiable group of Indians to sue, one, for any claim aris ing under the Constitution of the United States. It also permits under clause 2 of section 2, any claim arising in law or equity against the United States, and under clause 5 it allows any claim, and I would like to quote the language exactly, "based on fair and honorable dealings not recognized by any existing rule of law or equity." Senator JACKSON. Yes, but may I say right at that point that that language was put in, as I recall, to deal with those situations wherein certain treaties were negotiated, where practices employed, we may say, allegedly employed, by our Government representatives, made it impossible for the Indian tribe or band to get a fair treaty. We recognized at the time that some such language like that would have to be put in because the ordinary rules of duress and fraud and misrepresentation that are applicable in a court of law or equity would preclude these people from laying claim under the ordinary rules of law and equity. Mr. BARNEY. I was explaining to you the theory on which the plaintiffs have brought their lawsuits involving this aboriginal title. Senator JACKSON. Am I correct now, the statute for litigations is for filing claims expired a year and a half ago. Mr. BARNEY. August 13, 1951. Yes, sir; that is correct. The CHAIRMAN. I may mention the fact, Senator Cordon, that I have here four proposals in the nature of an amendment that I expect to present. I do not imagine that you want them at this time, but I do hope that they will get the close attention of this subcommittee at the proper time. I have here what I intend to try to do. One is an amendment intended to give the complete assurance of title to all property owners against any possible Indian claims. From a strict legal standpoint it may not be necessary, but it should have a healthy effect in restoring complete confidence to land titles in Alaska. I would like at the proper time to have the committee consider them. Senator CORDON. You will receive that consideration, Senator, as you know. Before you go further, I would like to read into the record article III of the treaty with Russia for the purchase of Alaska: The inhabitants of the ceded Territory, according to their choice, reserving their natural allegiance, may return to Russia within 3 years; but if they should prefer to remain in the ceded Territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country. Mr. BENNETT. Mr. Chairman, may I suggest that at that point article II and article VI of that treaty should be read into the record, or placed into the record, because they were relied upon in the case of Miller v. the United States as having cut off any possible native or aboriginal title. Senator CORDON. Without objection, articles II, III, and VI of the treaty will be placed into the record at this point. (The data referred to follow :) ARTICLE II In the cession of territory and dominion made by the preceding article are included the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property. It is, however, understood and agreed, that the churches which have been built in the ceded territory by the Russian government, shall remain the property of such members of the Greek Oriental Church resident in the territory, as may choose to worship therein. Any government archives, papers and documents relative to the territory and dominion aforesaid, which may be now existing there, will be left in the possession of the agent of the United States; but an authenticated copy of such of them as may be required, will be, at all times, given by the United States to the Russian government, or to such Russian officers or subjects as they may apply for. ARTICLE III The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country. ARTICLE VI In consideration of the cession aforesaid, the United States agree to pay at the treasury in Washington, within ten months after the exchange of the ratifications of this convention, to the diplomatic representative or other agent of his Majesty the Emperor of all the Russias, duly authorized to receive the same, seven million two hundred thousand dollars in gold. The cession of territory and dominion herein made is hereby declared to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions, by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders; and the cession hereby made, conveys all the rights, franchises, and privileges now belonging to Russia in the said territory or dominion, and appurtenances thereto. Mr. BENNETT. There is an interesting commentary on that which deals with the natives' property rights under the possessory act. Congress specifically recognized their rights to the possession of the lands in their actual use and occupation, in the 1884 statute and in 2 succeeding statutes, 1 in 1891 and 1 in 1900. Under those acts, the courts had held, after some early disagreement in different opinions, but the final answer by the Circuit Court for the Ninth Circuit was that their possessory rights could be freely sold and transferred by the natives, that they were not, so far as those possessory acts are concerned, under the restrictions that the Indians in the continental United States have been under with respect to transferring their occupancy rights. Mr. BARNEY. To get back to the land claims, one of the biggest claims, in fact the largest claim was filed by the Tlingit and Haida Indians under the Special Jurisdictional Act of 1935. It claims all the lands east of the 141st parallel. In other words, everything in southeast Alaska. Senator JACKSON. They claim the town of Juneau, Ketchikan and everything else? Mr. BARNEY. Everything. Waters, tidelands, and everything else. Everything east of 141st. The CHAIRMAN. They must have had a good attorney. |