Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Source Description
This file contains materials relating to legal issues raised by proponents of S 15 of S. 1824, the proposed trespass claims extinguishment amendment.
Scholar Source Context
Document identity
localId
1075685
label
Alaska Native Land Claims - S. 1469
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
1075685
sourceUrl
contentType
document
title
Alaska Native Land Claims - S. 1469
description
This file contains materials relating to legal issues raised by proponents of S 15 of S. 1824, the proposed trespass claims extinguishment amendment.
citationUrl
collections
Vernon C. Loen and Charles Leppert Files
Vernon Loen's and Charles Leppert's General Subject Files
subjects
Arctic Ocean
Alaska
Eskimos
iiifBase
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
1075685
coverageEndDate
day
22
logicalDate
1975-09-22
month
9
year
1975
coverageStartDate
day
22
logicalDate
1975-09-22
month
9
year
1975
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
url
mediaId
ae7794b313a0bba3
ocrText
The original documents are located in Box 1, folder "Alaska Native Land Claims - S. 1469"
of the Loen and Leppert Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 1 of the Loen and Leppert Files at the Gerald R. Ford Presidential Library
FICE
ALASKA NATIVE
LAND CEAIMS
MEMORANDUM
LEGAL ISSUES RAISED BY
PROPONENTS OF § 15 OF S. 1824,
THE PROPOSED TRESPASS CLAIMS
EXTINGUISHMENT AMENDMENT
submitted
by
INUPIAT COMMUNITY OF THE ARCTIC SLOPE
ARCTIC SLOPE NATIVE ASSOCIATION
ARCTIC SLOPE REGIONAL CORPORATION
September 22, 1975
Davis, Wright, Todd, Riese & Jones
4200 Seattle-First Nat'l Bank Bldg.
Seattle, Washington 98154
FORD LIBRARY is 9ERALD
MEMORANDUM
LEGAL ISSUES RAISED BY
PROPONENTS OF § 15 OF S. 1824,
THE PROPOSED TRESPASS CLAIMS
EXTINGUISHMENT AMENDMENT
INDEX
I.
SUMMARY
1
II.
A CAUSE OF ACTION FOR TRESPASSORY CONDUCT IS
PROPERTY PROTECTED BY THE FIFTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND MAY BE TAKEN
ONLY FOR PUBLIC PURPOSES AND WITH PAYMENT OF
JUST COMPENSATION
4
A. Claims for Damage Based on the Common
Law are Property Protected by the
Constitutional Requirements of Due
Process and Payment of Just Compensation
4
B. Both Tort and Contract Claims Based on
the Common Law are Protected by Due
Process and Just Compensation Requirements
9
C. Trespassory Conduct Gives Rise to Claims
for Damage Sounding in Both Tort and Contract
12
D. Legislation Extinguishing the Trespass
Claims of Arctic Slope Eskimos, if
Constitutional, Would Subject the United
States Treasury to Substantial Liability
for the Taking of Those Claims
15
E. The Settlement Act was not "Just Compen-
sation" for the Trespass Claims of Arctic
Slope Eskimos
17
III. THE ALASKA NATIVE CLAIMS SETTLEMENT ACT OF
DECEMBER 18, 1971, DID NOT EXTINGUISH TRESPASS
CLAIMS OF ARCTIC SLOPE ESKIMOS
23
A. The Congressional Purpose in Providing for
a Legislative Settlement of Alaska Native
Land Claims was to Remove the Cloud on Title
to Alaska Lands
23
i
BERALD FORD LIBRARY
B. Congress did not Intend to Extinguish
Property Rights Protected by the Fifth
Amendment
26
C. The Language and Legislative History of
Section 4 (c) Expressly Preserve Tort Claims
of Alaska Natives and Provide no Persuasive
Support for the Proposition that the Act
Extinguished Accrued Trespass Claims
30
IV. ARGUMENTS BY THE STATE OF ALASKA THAT THE FIFTH
AMENDMENT DOES NOT APPLY TO THE PROPERTY RIGHTS
OF INDIANS HAVE NO BASIS IN AMERICAN LAW
41
A. The Argument that Indian Possessory Rights
are Inferior to those of the White Man
41
B. The Argument that Indian Possessory Rights
may be Extinguished Because they are Based
on Statutory Rights
47
C. The Argument that Congress can Retroactively
Ratify Trespasses to the Arctic Slope
48
V.
ARCTIC SLOPE ESKIMOS ARE NOT BARRED FROM RAISING
THEIR DAMAGE CLAIMS FOR TRESPASSORY CONDUCT BY
ACCEPTING BENEFITS UNDER THE SETTLEMENT ACT AND
HAVE NOT RELINQUISHED THOSE CLAIMS
53
A. No Acceptance of Benefits Rule Applies
53
B. Arctic Slope Eskimos have Never Relinquished
Damage Claims for Pre-Settlement Act Trespasses
55
ii
FORD & LIBRARY GERALD
MEMORANDUM
LEGAL ISSUES RAISED BY PROPONENTS OF
§ 15 OF S. 1824, THE PROPOSED TRESPASS
CLAIMS EXTINGUISHMENT AMENDMENT
I. Summary
The proposal to extinguish the accrued trespass claims of
Arctic Slope Eskimos through enactment of § 15 of S.1824
raises serious constitutional questions. Causes of action
based on the common law, whether sounding in tort or contract,
are property rights protected by the Fifth Amendment. Part II
(A) infra.
Arguments by the State of Alaska that tort claims are not
entitled to Fifth Amendment protection lack any legal merit,
Part II (B) infra, and are, in any event, irrelevant because
the Eskimos' most substantial damage actions will be quasi-
contract claims which are conceded to be Fifth Amendment
rights by the State. Part II (C) infra.
Enactment of § 15 of S.1824 might be a violation of the
Fifth Amendment's requirement that private property may be
taken only for public use. No public benefit would accrue to
the American people from an act shifting substantial liability
1
for intentional tortious acts from the wrongdoers to the
United States Treasury. If § 15 of S.1824 were not held to be
unconstitutional, it would still impose a substantial
obligation on the United States to provide "just compensation"
for the taking of the Eskimo's property. Part II (D) infra.
Settlement Act funds could not be used to satisfy this obliga-
tion. Part II (E) infra.
The United States did not incur liability for a taking of
the Eskimos' trespass claims in 1971 when the Settlement Act
became law because the Act did not extinguish them. Congress
enacted the Settlement Act to clear up a cloud on title to
Alaska's lands, Part III (A) infra, not to take the Fifth
Amendment property rights of Alaska citizens. Part III (B)
infra. Tort claims were expressly preserved. Part III (C)
infra.
Arguments that Indian trespass claims have less constitu-
tional protection than those of other American citizens are
without merit. Until extinguished by Congress, Indians have
the same rights to quiet enjoyment of their lands and the same
rights to invoke judicial protection in aid thereof as do
other American citizens. Part IV (A) infra. Indian posses-
sory rights are based on the common law, Part IV (B) infra,
and, like other Fifth Amendment rights, cannot be infringed by
attempts to give ratification retroactive effect Part IV (C).
2
Arctic Slope Eskimos are not precluded from asserting their
trespass claims by any rule of constitutional adjudication;
Part V (A) infra. At no time have Arctic Slope Eskimos relin-
guished their trespass claims -- in exchange for enactment of
the Settlement Act or anything else. Part V (B) infra.
The exclusively legal nature of the arguments made by the
proponents of § 15 of S.1824, and the responses herein, show
that the Edwardsen trespass claims are clearly a "case or con-
troversy" within the meaning of Article III, § 2, Cl. 1, of the
United States Constitution. Their resolution is within the
exclusive jurisdiction of American courts. The dramatic
intervention in the judicial process called for by § 15 of
S.1824 would be a violation of the separation of powers and a
most unfortunate congressional precedent.
3
II. A CAUSE OF ACTION FOR TRESPASSORY CONDUCT IS PROPERTY PRO-
TECTED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTI-
TUTION AND MAY BE TAKEN ONLY FOR PUBLIC PURPOSES AND WITH
PAYMENT OF JUST COMPENSATION.
S.1824, § 15, seeks to extinguish accrued claims of Alaska
Natives for trespass to lands held under aboriginal title
prior to December 18, 1971, the effective date of the Alaska
Native Claims Settlement Act. In written submissions to this
Committee the State of Alaska and the Department of Justice
have argued that such extinguishment would not be unconstitu-
tional because claims for trespassory conduct are not pro-
tected by the Fifth Amendment to the United States Consti-
tution. That contention is contrary to the virtually
unanimous declaration of American courts that causes of action
based on the common law, whether in tort or contract, are
property protected by the due process and just compensation
requirements of the United State Constitution.
A. Claims for Damage Based on the Common Law are Property
Protected by the Constitutional Requirements of Due
Process and Payment of Just Compensation.
A claim for damages, whether arising out of tortious
conduct or breach of contract, is indisputably property.
While by a "chose in action" is ordinarily understood
a right of action for money arising under contract,
the term is undoubtedly of much broader significance,
and includes the right to recover pecuniary damages
for a wrong inflicted either upon the person or
property. It embraces demands arising out of a tort,
as well as causes of action originating in a breach of
contract. A thing in action, too, is to be regarded
as property.
4
City of Cincinnati V. Hafer, 49 Ohio St. 60, 30 N.E. 197 (Sup.
Ct. ), quoted with approval in Williams V. Atlantic Coastline
R. Co., 69 S.E. 402, 403 (N. C. 1910); See Affiliated Ute
Citizens of the State of Utah V. United States, 406 U.S. 128,
136-40 (1972) liquidated and unliquidated causes of actions
treated as tribal assets).
"Property" subject to constitutional protection in the
United States encompasses more than just tangible objects and
includes interests and expectations of many kinds.
"[P]roperty" interests subject to pro-
cedural due process protection are not
limited by a few rigid, technical forms.
Rather, "property" denotes a broad range
of interests that are secured by "existing
rules of understandings."
Perry V. Sinderman, 408 U.S. 593, 601 (1972) (expectency of
re-employment is property subject to due process guarantees).
Just as houses, land, automobiles and other property of United
States citizens are protected by the Constitution, so too are
claims for money damages.
Hence it is that a vested right of action
is property in the same sense in which
tangible things are property, and it is
equally protected against arbitrary
interference. Whether it springs from
contract or from the principles of the
common law, it is not competent for the
legislature to take it away.
Pritchard V. Norton, 106 U.S. 124, 27 L. Ed. 104, 107 (1882),
accord, Gibbes V. Zimmerman, 290 U.S. 326, 333 (1933)
5
(dictum). Indeed, the proposition that causes of action are
property protected by due process is so fundamental that it is
black letter law in the legal encyclopedias. See 16 Am. Jur.
2d "Constitutional Law" § 424 (1964) 16A C.J.S. "Constitu-
tional Law" § 599 at 698 (1956).
Ettor V. City of Tacoma, 228 U.S. 148, (1913), stands
squarely for the proposition that a cause of action is a pro-
perty right protected by the Constitution. The City of Tacoma
graded a street and damaged abutting property at a time when a
state statute required payment of compensation for such
damage. After the damage had occurred, the state legislature
repealed the statute. The court held that the subsequent
repeal of the statute could not constitutionally extinguish
the damage claim which had arisen while the statute was in
force.
The necessary effect of the repealing act
as construed and applied by the court
below, was to deprive the plaintiffs in
error of any remedy to enforce the fixed
liability of the city to make compen-
sation. This was to deprive the plain-
tiffs in error of a right which had vested
before the repealing act, -- a right which
was in every sense a property right.
228 U.S. at 156.
Ettor cannot be distinguished on the grounds that it
applies only to damages for breach of contract. There was no
contract in Ettor. The obligation to pay damages was imposed
by the State in the form of a statute. By grading a street and
6
causing consequential damage to abutting property owners, the
City of Tacoma gave no more a promise to pay damages than does
a trespassor who enters the lands of another and causes
damage.
The only difference between the damage claim asserted in
Ettor and the trespass claims of Arctic Slope Eskimos is that
the obligation to pay damages in Ettor was imposed by statute
whereas the obligation to pay damages for trespass to Indian
lands is imposed by federal common law. If this difference
had any constitutional significance, it is that causes of
action based on the common law are entitled to greater protec-
tion against uncompensated legislative extinguishment. See,
e.g.., State of Alaska, "Constitutional Issues Relating to the
Extinguishment of Native Tresspass Claims," Hearings Before
the Senate Committee on Interior and Insular Affairs, Amend-
ments to the Alaska Native Claims Settlement Act, Part 2, at
74-78 (lst Sess. 1975) [hereinafter Extinguishment Ammendment
Hearings].
An express holding that tort claims are protected by the
Fifth Amendment occurred in Farbwerke, Meister, Lucius &
Bruning V. The Chemical Foundation, 39 F.2d 366 (3d Cir.
1930), aff'd 283 U.S. 152. Farbwerke involved a claim for
patent infringement which is a tort. Shillinger V. U.S., 155
U.S. 163 (1894). In Farbwerke certain German patent owners
brought suit to recover royalties on certain patents which had
7
been taken from them during World War I and sold by the United
States. The Farbwerke plaintiffs alleged that a subsequent
statute enacted by the United States retroactively restored in
them ownership of the royalties accruing on the patents. The
Third Circuit held squarely that insofar as the statute did
act to transfer the right to sue for accrued royalties from
the present owners to other persons it was unconstitutional.
The right to accrued royalties, in whomso-
ever vested, is a chose in action; a chose
in action is property; and an act which
takes property from one person and gives
it to another without legal procedure to
determine their rights and without com-
pensation is a deprivation of property
without due process of law and is viola-
tive of the Fifth Amendment to the Consti-
tution.
39 F.2d at 371 (emphasis added).
Numerous state court decisions have also held that causes
of action based on the common law, whether sounding in tort or
contract, are protected by the due process and just compensa-
tion requirements of the United States Constitution.
[The due process clause and the just com-
pensation clause of the Fifth Amendment]
prohibit the passage of a law depriving [a
citizen] or authorizing the depriving him
of his property, except through judicial
sentence or upon just compensation. The
right to damages, to be recovered in a
civil action, for false imprisonment, is a
chose in action -- is property -- and
passes to one's representatives at death
by the law of Indiana.
Griffin V. Wilcox, 21 Ind. 370, 373 (1863).
8
A legal right to damage for an injury is
property and one cannot be deprived of his
property without due process. There can
be no due process unless the party de-
prived has his day in court
Rosane V. Singer, 112 Colo. 363, 149 P. 2d 372, 375 (1944)
accord, Williams V. Atlantic Coastline R. Co., 69 S.E.2d 403
(N. C. 1910) ; Citron V. Mangel Stores Corp., 50 N.Y.S. 2d 416
(Sup. Ct. 1944)
Legislative extinguishment of a cause of action based on
the common law has been almost uniformly held to be a viola-
tion of due process.
The statute provides a rule of substantive
law. The effect of the change, if given
retrospective effect, would be to deprive
plaintiff and others similarly situated
of a right of action. This court has re-
cognized that a common law right of action
is property and entitled to protection.
Cusick V. Feldpausch, 259 Mich. 349, 342 N.W. 226, 227 (1932).
This rule [that the legislature can abo-
lish statutory remedies and therefore a
cause of action at any time] only applies
when the right in question is a statutory
right and does not apply to an existing
right of action which has accrued to a
person under the rules of the common law,
or by virtue of a statute codifying the
common law. In such a case it is gener-
ally stated that the cause of action is a
vested property right which may not be
impaired by legislation.
Callet V. Alioto, 290 P. 438, 440 (Cal. 1930).
B. Both Tort and Contract Claims Based on the Common Law
are Protected by Due Process and Just Compensation
Requirements.
In its supplemental memoranda submitted to this Committee,
the State of Alaska, conceding that claims based on contract
9
are protected by the Fifth Amendment, suggested that tort
claims might not be accorded the same protection. Extinguish-
ment Amendment Hearings, Part 2, at 71. However, the State
cited no cases holding that tort claims are not protected by
the Fifth Amendment. Indeed, in a later section of its brief
the State conceded, in effect, that trespass actions are pro-
tected by the Fifth Amendment.
A trespass action is, in essence, a means
of making whole the owner of an interest
in land where that interest has been
wrongfully invaded and thereby diminished
in value. Most interests in land, such as
a fee simple, are themselves constitu-
tionally protected from uncompensated
governmental taking. To preserve those
protected interests intact, it may be
necessary to hold that an accrued trespass
action, which would make whole the owner
of the interest, is also constitutionally
protected.
Extinguishment Amendment Hearings, Part 2, at 72.
This begrudging concession by the State obscures the fact
that the vast majority of American courts have recognized that
most interests protected by the sovereign are property subject
to constitutional protections regardless of whether the remedy
for interference with those interests sounds in tort or con-
tract. None of the federal and state court decisions dis-
cussed above, which hold that causes of action are protected
by due process, make any distinction between tort and contract
claims. Indeed, many of those cases involve classic tort
claims. Martinez V. Fox Valley Buslines, 17 F. Supp. 576
10
(N.D. Ill. 1936) (personal injury) ; Rosane V. Singer, 112
Colo. 363, 149 P. 2d 372 (1944) (medical malpractice) ;
Williams V. Atlantic Coastline Ry. Co., 69 S.E.2d 402 (N.C.
1910) (wrongful ejectment from train); Griffin V. Wilcox, 21
Ind. 370 (1863) (false imprisonment).
The rule that an accrued cause of action based on the
common law is a vested property right which may not be extin-
guished by the legislature has been expressly applied to tort
claims.
The rule that repeal does not operate to
affect vested rights is applicable not
only to those acquired under contract but
also to vested rights of action to recover
damages for torts.
Massa V. Nastri. 125 Conn. 144, 3 A.2d 839, 120 A.L.R. 939,
942 (1939) (citations omitted) ; accord, Pickering V. Peskind,
43 Ohio App. 401, 183 N.E. 301, 303 (1930) ; Callet V. Alioto,
290 P. 438 (Cal. 1930) ; County of Los Angeles V. Superior
Court of Los Angeles, 43 Cal. Rptr. 392, 395 (Dist. Ct. App.
1965) ; Jones V. City of Los Angeles, 30 Cal. Rptr. 124, 125
(Dist. Ct. App. 1963).
Accrued causes of action based on the common law are pro-
tected by the due process and just compensation requirements
of the United States Constitution whether sounding in tort or
contract. The contention that a different rule applies to
tort claims is a disservice to this Committee's effort to
evaluate the constitutional consequences of § 15 of S.1824.
11
C. Trespassory Conduct Gives Rise to Claims for Damage
Sounding in Both Tort and Contract.
The State of Alaska's attempt to draw a distinction be-
tween the constitutional protections afforded tort and con-
tract claims is, in any event, irrelevant because the claims
of Arctic Slope Eskimos against those parties who entered
their lands without consent include claims arising in tort for
trespass and claims arising in quasi-contract for the benefits
obtained by the trespassers. The State has conceded that
quasi-contractual causes of action are protected by the Fifth
Amendment.
[W] here the conduct of the parties gives rise to a
quasi-contractual obligation, a cause of action found-
ed in that obligation cannot be extinguished without
compensation.
Extinguishment Amendment Hearings, Part 2, at 70.
It is a well settled rule of common law that when a tres-
passer enters onto the lands of another and uses those lands
for his benefit or takes something of value from the lands,
the possessor of those lands many waive the right to sue for
the "naked trespass," and claim instead in quasi-contract for
the value conferred on the trespasser for the use of the
lands.
An action will lie for recovery of the
reasonable value of the use and occupation
of real property irrespective of the
question of whether or not the use thereof
by the occupant was tortious or wrongful.
In such a case the tort, if any, may be
waived and an action based upon implied
assumpsit is maintainable to recover the
12
value of the use of the real property for
the time of such occupation, where no
special damages are sought.
Herond V. Bonsall, 140 P.2d 121, 123 (Dist. Ct. App. Cal.
1943), quoted with approval in Richard V. Mead, 297 P. 2d 600,
682 (Dist. Ct. App. Cal 1956), and Meyer V. Parobek, 259 P.2d,
948, 951 (Dist. Ct. App. Cal. 1953).
Raven Red Ash Coal Co. V. Ball, 185 Va. 534, 39 S.E.2d 231
(1946), is a classic case illustrating the right of a plain-
tiff to recover in quasi-contract for the benefits obtained by
a trespasser. In that case the defendant coal company secured
an easement to haul coal across the plaintiff's land from one
certain tract of land and then used the easement for transpor-
tation of additional coal from other tracts of land. The
court held that the coal transported in excess of the easement
was a trespass and that the plaintiff was entitled to recover
damages from the defendant in the amount by which the defen-
dant had been enriched by using the easement for transporting
the additional coal. The court squarely rejected an argument
that the quasi-contractual damages could not be awarded be-
cause the trespass did not cause physical damage to the plain-
tiff's land.
To hold that a trespasser who benefits
himself by cutting and removing trees from
another's land is liable on an implied
contract, and that another trespasser who
benefits himself by the illegal use of
another's land is not liable on an implied
contract is illogical. The only distinc-
tion is that in one case the benefit he
13
received is a diminution of another's
property. In the other case, he still
receives the benefit but does not thereby
diminish the value of the owner's pro-
perty. In both cases, he has received
substantial benefit by his own wrong. As
the gist of the action is to prevent the
unjust enrichment of a wrongdoer from il-
legal use of another's property, such
wrongdoer should be held on an implied
promise in both cases.
The illegal transportation of the coal
in question across plaintiff's land was
intentional, deliberate and repeated from
time to time over a period of years.
Defendant had no moral or legal right to
enrich himself by this illegal use of
plaintiff's property. To limit plaintiff
to the recovery of nominal damages for the
repeated trespasses will enable defen-
dant, as a trespasser to obtain a more
favorable position than a party contract-
ing for the same right. Natural justice
plainly requires the law to imply a pro-
mise to pay a fair value of the benefits
received. Defendant's estate has been en-
hanced by just as much.
39 S.E.2d at 236-38 (emphasis added).
This implied promise to pay for the benefits received by a
trespasser has been recognized by the Supreme Court. Laza-
rus V. Phelps, 152 U.S. 81 (1893) (recovery allowed in quasi-
contract for benefit to defendant of grazing cattle on
plaintiffs land), and by federal courts of appeal. See, e.q.,
Shell Petroleum Corp. V. Scully, 71 F2d 772 (5th Cir. 1934)
(geophysical trespass gives rise to damage claim for benefit
conferred on trespasser).
14
Although great physical damage was done to the land,
homes, sacred places, and personal property of Arctic Slope
Eskimos, the major damage claims to be brought on their behalf
will be for the enormous benefits reaped by the oil company
trespassers to the Arctic Slope prior to the extinguishment of
the Eskimos' aboriginal title. Those trespasses generated
geophysical information of enormous value and allowed certain
oil companies to obtain leases worth millions of dollars.
Other benefit was obtained by the extraction of oil, gas
water, sand and gravel and through the use of many surface
areas on the Arctic Slope for profit-making activities. The
claims of Arctic Slope Eskimos for damages resulting from
these activities will all sound in quasi-contract and are, as
the State of Alaska concedes, fully protected by the Fifth
Amendment against uncompensated legislative extinguishment.
D. Legislation Extinguishing the Trespass Claims of Arc-
tic Slope Eskimos, if Constitutional, Would Subject
The United States Treasury to Substantial Liability
for the Taking of Those Claims.
The claims of Arctic Slope Eskimos for trespasses to the
Arctic Slope prior to December 18, 1971, are property rights
fully protected by the due process and just compensation re-
quirements of the United States Constitution. Under those
constitutional provisions, accrued causes of action may not be
extinguished by the Congress of the United States except for a
public use with payment of just compensation.
15
Nor [shall any person] be deprived of
life, liberty or property, without due
process of law; nor shall private property
be taken for public use, without just
compensation.
United States Constitution, Amendment V. Enactment of any
legislation which had the effect of preventing Arctic Slope
Eskimos from presenting their damage claims for trespassory
entries to the Arctic Slope to American Courts would, under
the Fifth Amendment, either be unconstitutional or would sub-
ject the United States to liability for the full dollar value
of the claims.
Because the major consequence of § 15 of S. 1824 would be
to relieve certain private parties from liability for their
willful trespasses on the Arctic Slope of Alaska, Arctic Slope
Eskimos do not believe that a taking effected by this legis-
lation would be for a "public use" within the meaning of the
Just Compensation Clause of the Fifth Amendment. It would be
a taking of property belonging to Arctic Slope Eskimos for the
benefit of private tortfeasors which is constitutionally
impermissable. Swan Lake Hunting Club V. United States, 381
F. 2d 238, 241 (5th Cir. 1967), citing O'Neill V. Leamer, 239
U.S. 244 (1915).
Even if extinguishment of damage claims against oil com-
panies and their joint tortfeasors were found to be a taking
for "public use" and hence constitutional under the Fifth
16
Amendment, the requirements of due process and just compensa-
tion would oblige the United States to pay Arctic Slope
Eskimos the "full monetary equivalent" of their tort claims.
United States V. Reynolds, 397 U.S. 14, 15-16 (1970). Just as
the United Statespays a homeowner when his house is condemned
to make way for a highway, it would be required to pay the
Eskimos for its condemnation of their tort claims.
Although Congress might constitutionally effect a taking
of Eskimo tort claims by enacting § 15 of S. 1824, it could not
determine how much the United Sates would pay for them because
the question of what constitutes "just compensation" is deter-
mined exclusively by the courts. Monongahela Navigation Co.
V. United States, 148 U.S. 312, 327 (1893). Consequently, if
§ 15 of S. 1824 were not held to be unconstitutional, its
effect would be to subject the United States Treasury to
substantial liability in the courts for the taking of
extraordinarily valuable property rights.
E. The Settlement Act Was Not "Just Compensation" For the
Trespass Claims of Arctic Slope Eskimos
Recognizing that courts would hold the United States
liable for a taking of the trespass claims of Arctic Slope
Eskimos, the State of Alaska has argued that benefits given to
the Eskimos by the Settlement Act would satisfy judicial re-
quirements of "just compensation" for the extinguishment of
those claims by § 15 of S. 1824. This argument would not
satisfy judicial standards under the Fifth Amendment in four
important respects.
17
First, as shown in Part III infra, Congress, when enacting
the Settlement Act, did not intend to extinguish any rights
which were protected by the Fifth Amendment. Believing that
Tee-Hit-Ton Indians V. United States, 348 U.S. 272 (1955), did
not require the payment of any compensation for the extin-
guishment of aboriginal title in Alaska, Congress viewed the
monetary payments and land conveyances mandated by the Settle-
ment Act as satisfying only the moral and political obliga-
tions of the United States to Alaska Natives. Certainly,
there is no express declaration anywhere in the Settlement Act
or its legislative history that Congress intended to take
Fifth Amendment property or to provide compensation for such a
taking.
Accordingly, Section 4 (c) of the Settlement Act cannot be
construed as extinguishing any Fifth Amendment rights. That
construction must follow from the legislative history of the
Act and from the constitutional rule that destruction of pro-
perty rights by implication or ambiguity is not favored and
will not be allowed by a court unless the implication is so
clear as to be equivalent to an express declaration. Osbourne
V. Nicholson, 80 U.S. (13 Wall) 654 (1872). The Settlement
Act did not provide "just compensation" for the extinguishment
of the trespass claims of Arctic Slope Eskimos for the simple
reason that neither its language or legislative history are
sufficiently clear to effect a taking to which its "settle-
ment" could be applied.
18
Second, if, in 1975, Congress attempts to extinguish the
trespass claims of Arctic Slope Eskimos by enacting § 15 of S.
1824 on the theory that a "settlement" in 1971 provided "just
compensation," such legislation would be unconstitutional
under the requirement that there be "reasonable, certain and
adequate provision for obtaining compensation" at the time of
the taking. Cherokee Nation V. Southern Kansas R. Co., 135
U.S. 641, 659 (1890), quoted with approval in Regional Rail
Reorganization Act Cases, 419 U.S. 102 42 L. Ed. 2d 320, 343
(1974).
The likelihood that Arctic Slope Eskimos could obtain com-
pensation from the Settlement Act for a taking of their tres-
pass claims would be anything but "reasonable" or "certain." "
The disposition of funds and lands under that Act is governed
by an intricate statutory scheme. The suggestion that a court
would be willing to upset this statutory framework to satisfy
the tort claims of a particular Native group defies rational
belief. Absent specific legislation by Congress authorizing a
redistribution of Settlement Act benefits and, in effect,
enacting a new Settlement Act, it is inconceivable that any
court would order diversion of Settlement Act funds to satisfy
the trespass claims of Arctic Slope Eskimos.
Third, neither Congress nor the courts can withdraw the
benefits of the Settlement Act from Alaska Natives for the
19
purpose of redistributing those benefits to others even where
the new beneficiaries are a sub-group of the former. With
passage of the Act, the funds and lands distributed by it
became vested property rights in the recipient corporations,
villages, and individuals. The United States can no more
interferewith these Fifth Amendment property rights than it
can the trespass claims of Arctic Slope Eskimos. Once given,
even gifts become protected property. The suggestion that the
United States can use the property of others to satisfy its
own obligation to provide "just compensation" strains cred-
ulity to the breaking point. Extinguishment of trespass
claims in 1975 would create a new obligation of the United
States to pay just compensation. Past gifts or even past
consideration cannot be used to satisfy that new debt.
Finally, even if the benefits of the Settlement Act to
Arctic Slope Eskimos could be deemed to be a source of "just
compensation" for takings of trespass claims in 1971 or 1975,
those benefits would not be the "full monetary equivalent of
the property taken." United States V. Reynolds, 397 U.S. 14,
15-16 (1970). Under the Settlement Act, Arctic Slope Eskimos
received five million acres of land and the right to receive
cash payments of approximately 48 million dollars.
Because land selections of the Arctic Slope Regional
Corporation (ASRC) and its eight associated villages were, in
important respects, such as mineral rights, confined to areas
20
outside Naval Petroleum Reserve No. 4, the Arctic National
Wildlife Range, and previous land selections by the State of
Alaska in Prudhoe Bay, the lands Arctic Slope Eskimos will
receive under the Act have no known value. Moreover, seventy
per cent of any proceeeds from the subsurface estate of the
lands ASRC selects must be shared with other Alaska Natives
pursuant to Section 7 (i) of the Act. Thus, as "just compen-
sation" for trespass claims of major magnitude, the lands
given to ASRC under the Settlement Act are not "adequate" and
since the ultimate value of those lands is wholly indefinite,
they cannot satisfy the constitutional requirement of cer-
tainty of compensation.
Monetary payments to be received by Arctic Slope Eskimos
under the Settlement Act will not constitute adequate compen-
sation for the taking of their trespass claims. On December
18, 1971, the value of the monetary payments promised to the
Arctic Slope was approximately 22 million dollars based on a
discount rate of 10%. By contrast, spokesmen for the State of
Alaska and the oil industry have represented to Congress that
their exposure to suits under the Edwardsen stipulations may
literally exceed a billion dollars. Although that figure
appears to be excessive, it is clear that those claims are
worth far more than the 22 million dollars (or approximately
$5500 per Eskimo) that the Arctic Slope received for Prudhoe
Bay. Thus, even if the United States could somehow constitu-
21
tionally and morally take back its settlement with Arctic
Slope Eskimos so as to give them nothing for the taking of some
of the most valuable property in the world, that settlement
would not be adequate compensation for the extinguishment of
their trespass claims.
The suggestion that Settlement Act benefits should be
applied by the courts as "just compensation" for the taking of
the trespass claims of Arctic Slope Eskimos is dangerous. It
is dangerous because it erroneously suggests that the Edward-
sen problem can be taken care of "on the cheap," that the
United States Treasury won't really be called upon to satisfy
the enormous liabilities incurred by oil companies in the rush
for Prudhoe Bay. It is dangerous because it invites dismem-
bering of the Settlement Act in an effort to make it serve a
purpose which its sponsors never intended. Most importantly,
it is dangerous because it invites America to unilaterally
alter its settlement with Alaska Natives, to make the last
chapter of this Nation's history with American Indians "just
another broken treaty."
22
III. THE ALASKA NATIVE CLAIMS SETTLEMENT ACT OF DECEMBER 18,
1971, DID NOT EXTINGUISH TRESPASS CLAIMS OF ARCTIC SLOPE
ESKIMOS
Proponents of § 15 of S 1824 have argued at great length to
this Committee that $ 4 (c) of the Settlement Act extinguished,
and was intended to extinguish, accrued trespass claims of
Arctic Slope Eskimos. See, e.g., Extinguishment Amendment
Hearings, part 2, at 110-148. That construction of § 4 (c) is
not supported by its language, its legislative history or any
persuasive analysis of the type of claims Congress intended to
extinguish on December 18, 1971.
A. The Congressional Purpose in Providing for a Legisla-
tive Settlement of Alaska Native Land Claims Was to
Remove the Cloud on Title to Alaska Lands.
Although the land claims of Alaska Natives based on abori-
ginal use and occupancy have been the subject of several acts
of Congress, including inter alia, the Organic Act of May 17,
1884, 23 Stat. 24 (Sec. 8), and the Alaska Statehood Act of
July 7, 1958, 72 Stat. 339 (Sec. 4), it was not until the
1960's, when the State of Alaska began to make land selections
under the Statehood Act, that the conflict between State and
Native claims to land in Alaska became serious. An informal
land freeze was instituted by Secretary of the Interior Udall
in late 1966, and later formalized. P.L.O. No. 4582, (January
17, 1969). The issuance of mineral leases on federal lands
and approvals and tentative approvals of state selections were
suspended pending congressional determination of Native land
rights.
23
The land freeze made a congressional settlement of land
claims virtually mandatory. The only other alternative was
extensive litigation over the title to lands in Alaska, which
had already begun in State of Alaska V. Udall, 420 F. 2d 938
(9th Cir. 1969), and in which the court's ruling had the
effect of barring further approval of state selections pending
a determination of Native aboriginal land rights.
In the report accompanying S.35, the Senate Interior Com-
mittee's version of the Settlement Act, the problems raised by
the Natives' outstanding and unextinguished aboriginal land
claims were described as follows:
As a result: (1) there is doubt about the
authority of the Department of the Inter-
ior to grant to the State or other parties
rights in, or patent to, public lands in
Alaska claimed by Natives; consequently,
almost all mineral leasing on the state
selection of such lands have been brought
to a halt; (2) the title to public lands
or other property in Alaska transferred to
the State or to private persons in the
fact of a Native protest is seriously com-
promised; yet (3) Congress to date has
granted no agency or court the jurisdic-
tion to make a determination on their
merits concerning Native claims in
Alaska.
S. Rep. No. 92-405, 92d Cong., 1st Sess. 76 (1971) (emphasis
added).
Later in the same report, the Settlement Act's congres-
sional purpose as contained in § 2 of the Senate bill was
explained as follows:
24
Congress finds that there is an
immediate need for a fair, just, and final
settlement of all Alaskan Native land
claims; that these land claims constitute
a legal (but judicially undetermined)
cloud on the title to virtually all lands
in Alaska; that the best interests of the
Native people of Alaska, State of Alaska
and the United States are served by a
prompt and final legislative settlement;
and that the effectuation of such a set-
tlement is the purpose of the Act.
Id. at 108 (emphasis added). Although the "declaration of
policy" section of the Settlement Act as finally enacted does
not contain the emphasized language, the conference report
makes it clear that "[t]he substance of the conference report
language is the same as section 2 of the Senate Amendment. H.
Rep. No. 92-746, 92d Cong., 1st Sess. 40 (1971).
That Congress saw the Settlement Act solely in terms of
removing the cloud on title to virtually all the public lands
of Alaska subject to Native claims is evidenced by the limit-
ing effect of the extinguishment clause to challenges to land.
By way of explaining the effect of § 4 of the Settlement Act,
the conferees stated that
It is the clear and direct intent of the
conference committee to extinguish all
aboriginal claims and all aboriginal land
titles, if any, of the Native people of
Alaska and the language of settlement is
to be broadly construed to eliminate such
claims and titles as any basis for any
form of direct or indirect challenge to
land in Alaska.
Id. (italics in original; emphasis added).
25
B. Congress Did Not Intend to Extinguish Property Rights
Protected by the Fifth Amendment.
As demonstrated earlier in Part II supra, the accrued
trespass claims of Arctic Slope Eskimos are property which
cannot be extinguished without payment of compensation by the
United States.
Nowhere in the entire legislative history of the Settle-
ment Act is there any suggestion that Congress intended to
provide compensation in it for the extinguishment of constitu-
tionally protected rights. Throughout the Act's legislative
history, it is clear that Congress intended to deal only with
aboriginal title which it understood to be not compensable
under the Fifth Amendment. See, e.g., discussion of impact of
Tee-Hit-Ton Indians V. United States, supra, on Native rights
in S. Rep. No. 92-405 at 86.
The clearest expression of what Congress saw its role to
be in settling Alaska Native land claims is contained in
Chairman Aspinall's opening statement during the May 1971
House hearings:
[T] here should be no misunderstanding
about the fact that Congress has sole
power and responsibility for determining
what is fair compensation for the extin-
guishment of aboriginal title. Congress
is not bound by prior statutes or by
judicial decisions. It is settled law
that aboriginal title is not compensable
under the due process clause of the Fifth
Amendment, and that Congress can extin-
guish an aboriginal title without paying
anything if it wishes to do SO. The con-
gressional policy to pay for aboriginal
titles is just that -- a policy. When
applying that policy, Congress is the sole
judge of adequacy of the payment.
26
Hearings on H.R. 3100, H.R. 7039, and H.R. 7432 before the
Subcomm. on Indian Affairs of the House Common Interior and
Insular Affairs, 92d Cong., 1st Sess. 65 (1971).
Congress, in Mr. Aspinall's view, was legislating not on
constitutionally protected rights of Alaska Natives, but only
with respect to their aboriginal title. Although Congress,
consistent with Tee-Hit-Ton, could have extinguished abori-
ginal title without the payment of compensation, Congressman
Aspinall also recognized the longstanding congressional policy
not to extinguish aboriginal title without the payment of
compensation. As he pointed out,
[T] he United States is the only country in
the world that pays for the extinguishment
of aboriginal titles.
[T] he amount of land to be granted, and
the amount of money to be paid, will be
based upon Congress' evaluation of Native
needs, the role of the Natives in the pre-
sent day affairs of the State, and the
impact of the grant to the Natives on the
economy of the State. The amount of the
grant to the Natives should not be equated
to the undetermined value of undetermined
land and water areas, to which the Natives
might be able to prove aboriginal title.
Id, at 66.
As the Chairman of the House committee responsible for the
drafting of the Settlement Act and the House-Senate Conference
Committee on the Act, Chairman Aspinall's view of its purpose
is entitled to great weight. His views on this point are
wholly consistent with the Eskimos' position that Congress in
the Settlement Act did not intend to extinguish Fifth Amend-
ment property rights.
27
It is also clear that Congress did not attempt to deter-
mine the question of compensation under the same standards a
court would have employed if constitutionally protected rights
had been involved. In justifying the $925 million provided as
the cash component of its settlement bill, the House Committee
said;
The $925,000,000 figure is an arbitrary
one. It is not intended to be related to
the value of the land claimed by the
Natives under the doctrine of aboriginal
title.
The figure chosen by the Commit-
tee
is based on the following con-
siderations: the extreme poverty and
underprivileged status of the Natives
generally, and the need for adequate
resources to permit the Natives to help
themselves economically.
H. Rep. 92-523, at 5-6.
Not only were the cash grants made to the Natives under
the Settlement Act "arbitrary," but the allocation formula
which Congress used demonstrates that no effort was made to
place a value on the aboriginal titles of each regional group
of Alaska Natives. All Native groups -- Indians, Eskimos and
Aleuts -- were treated alike without regard to the extreme
differences in value of the lands taken from them. Cash dis-
tributions under the Settlement Act are on a per capita basis,
i.e. tied to the number of Native enrolled in each region. By
failing to undertake a valuation of the claims involved and by
using a per capita formula for distributing the cash payments
under the Act, Congress was undeniably engaged in a political
settlement of the Native aboriginal claims which could not --
28
and did not --- obviate constitutionally protected rights.
Congress made no attempt to provide the "just compensation" to
Arctic Slope Eskimos required by the Fifth Amendment. The
fairness of the Settlement Act could be the subject of endless
debate; that constitutionally protected claims were outside
its purview is beyond doubt.
As the State of Alaska has conceded:
We believe that the Congress could not and
did not intend -- simply because it could
not do it -- reach constitutionally pro-
tected rights of action.
Extinguishment Amendment Hearings, Part 1, at 75.
A written statement, submitted to this Committee by
Senator Stevens in conjunction with his oral testimony, also
lends considerable credence to the fact that Congress did not
intend, by its passage of the Settlement Act in 1971, to ex-
tinguish claims protected by the Fifth Amendment. He noted
that "there would be no extinguishment of rights in those
cases where there was a disturbance of physical possession by
one acting without color of law," Id. at 39, and then stated:
I wish to make absolutely clear that
neither the Settlement Act itself nor any
amendment which I would support would
affect in any way the rights of an Alaskan
Native or any other citizen to recover for
actual damages where he suffered a per-
sonal tort or his physical possession of a
parcel of land was improperly disturbed.
Our focus in 1971 was, very properly, on
claims that were based on alleged aborigi-
nal title; any claims based on that title
or the like were extinguished. But one
need not have a claim of title to recover
damages for personal injuries or for
interference with any actual, substantial
and continuous occupancy of land. If
29
anyone destroyed a Native's dwelling or
farm land, or was guilty of a personal
tort, the claim of that Native is totally
unaffected by the Settlement Act. No one
would deny his right to recover his actual
damages, regardless of whether he was
Native or not.
Id. at 40.
As shown in Part IV (A) infra, the rights of
American Indians to protection of their right of quiet enjo-
yment to lands held under aboriginal title is exactly the same
as the right of all American citizens to quiet enjoyment of
their dwellings, farm lands and other property rights. Ameri-
can Indians, and all American citizens, are entitled to seek
judicial relief from the courts for all interferences with
these rights. The right to seek such relief -- a cause of
action -- is property protected by the Fifth Amendment whether
the interference is with aboriginal possessory rights or with
the right of possession to patented farm land. Accordingly,
if the Settlement Act did not, and was not intended to, extin-
guish the latter, as Senator Stevens contends, it did not, and
was not intended to, extinguish the former. If a trespass
claim for "disturbance of physical possession" survived the
Settlement Act, so did trespass claims for disturbance of
aboriginal possession. The Fifth Amendment does not
discriminate.
C. The Language and Legislative History of Section 4 (c)
Expressly Preserve Tort Claims of Alaska Natives and
Provide No Persuasive Support For the Proposition that
the Act Extinguished Accrued Trespass Claims.
Any analysis of what Congress intended to accomplish
through the extinguishment provisions of the Settlement Act
must begin with the statutory language of § 4:
30
(a) All prior conveyances of public
land and water areas in Alaska, or any
interest therein, pursuant to Federal
law, and all tentative approvals pursuant
to section 6 (g) of the Alaska Statehood
Act, shall be regarded as an extinguish-
ment of the aboriginal title thereto, if
any.
(b) All aboriginal titles, if any, and
claims of aboriginal title in Alaska based
on use and occupancy including submerged
land underneath all water areas, both
inland and offshore, and including any
aboriginal hunting or fishing rights that
may exist, are hereby extinguished.
(c) All claims against the United
States, the State, and all other persons
that are based on claims of aboriginal
right, title, use or occupancy of land or
water areas in Alaska, or that are based
on any statute or treaty of the United
States relating to Native use and
occupancy, or that are based on the laws
of any other nation, including any such
claims that are pending before any Federal
or state court or the Indian Claims Com-
mission, are hereby extinguished.
In its memoranda submitted to this Committee, Extinguish-
ment Amendment Hearings, Part 2, at 112-15, the State of
Alaska engages in an analysis of § 4 that strains to create a
logical framework for extinguishing the trespass claims of
Arctic Slope Eskimos. That analysis begins with § 4 (b) and
works outward to § 4 (a) and (c) to find Congressional intent.
It is clear that § 4 (b) extinguishes, as of December 18,
1971, "all aboriginal titles
and
claims of abori-
ginal title." What then, did Congress accomplish by including
§ $(a) and (c) in the extinguishment clause?
31
Subsection 4 (a) provides that "prior" conveyances of in-
terests in public lands of Alaska, including tentative appro-
vals under the Statehood Act, "shall be regarded as an extin-
guishment of the aboriginal title thereto, if any." The State
of Alaska asserts that 4 (a), by validating the tentative appr-
ovals and conveyances issued prior to December 18, 1971, also
extinguished aboriginal titles to the affected lands on the
dates those approvals and conveyances were issued. Thus the
State asserts that § 4 (a) did extinguish a large class of the
Native trespass claims, presumably those for trespasses occur-
ring on lands selected by and tentatively approved to the
State of Alaska prior to the Settlement Act.
However, as shown in Part IV (C) infra, $ 4(a)'s ratifica-
tion of prior conveyances and tentative approvals could not
extinguish the Native's aboriginal title. In the absence of
express language to the contrary, a conveyance of the United
States' fee interest in lands does not extinguish Indian pos-
sessory rights. See, e.g. United States V. Santa Fe Pacific
R.R. Co., 314 U.S. 339, 347 (1941); Buttz V. Northern Pacific
R.R. Co., 110 U.S. 55, 30 L. Ed. 330, 334 (1886).
Thus, what § 4 (a) accomplished was not extinguishment of
aboriginal title, but instead validation of leases among
various oil companies and confirmation of the State's title to
the lands it had selected. Without such validating action
those lands would have remained in the public domain, possibly
32
available for selection by Alaska Natives under the Settlement
Act. See Edwardsen V. Morton, 369 F Supp. 1359, 1377-78
(D.D.C. 1973). Section 4 (a), consistent with the purpose of
the Settlement Act, removed the clouds on the State's title to
tentatively approved lands and the oil companies' leases. It
did not extinguish aboriginal title and therefore had no
effect on Eskimo trespass claims.
The overriding purposes of § 4 (c), by its terms, was to
extinguish claims for compensation for the taking of aborigi-
nal title. Stated differently, while § 4 (a) validated state
tentative approval and federal conveyances and § 4 (b) extin-
guished the underlying aboriginal title of Alaska Natives, the
purpose of § 4 (c) was to preclude any pending or future claims
against the United States, the State of Alaska, or third
parties arising out of the taking or loss of aboriginal title.
As set forth above, the State's statutory analysis of § 4
presents no persuasive support for their assertion that "all
claims" in § 4 (c) "obviously" included claims for trespass to
aboriginal land as well as claims for the taking of aboriginal
land. In fact, "all claims" means aboriginal claims for
"land", "hunting", "fishing" and "water." See Extinguishment
Amendment Hearings, Part 1, at 99-101.
Moreover, contrary to the State's argument, tort claims
were expressly preserved by § 4 (c). This reading of § 4 (c) is
supported by the language of the report accompanying S.35, as
sent from committee to the Senate floor:
33
Section 4 declares the terms of the set-
tlement set forth in this Act, describes
the claims which are extinguished or pre-
served by the Act and sets up procedures
for a report by the Secretary of the
Interior on the future management and
operation of Federal programs in Alaska
primarily designed to benefit Alaska
Native people.
Section 4 (a)
Subsection 4 (a) declares that the provi-
sions of this Act constitute a full and
final extinguishment of any and all claims
based upon aboriginal right, title, use or
occupancy of land in Alaska. The language
specifically includes submerged lands and
any aboriginal hunting and fishing
rights. The extinguishment [sic] is final
and effective not only for claims against
the United States but also for any claims
against the State of Alaska and all other
persons. Remaining in effect and unextin-
guished by this Act are all claims which
are based upon grounds other than the loss
of original Indian title land. Included
in such unextinguished claims are suits
for an accounting for funds belonging to
Natives or Native groups in the custody of
the United States, for tort or breach of
contract, and for violations of the fair
and honorable dealings clause of the
Indian Claims Commission Act. Specifi-
cally included, and dismissed and extin-
guished under the terms of this Act, are
all claims pending before the Indians
Claims Commission and any court, Federal
or State, which are based upon a claim of
aboriginal right, title, use or occu-
pancy
All prior conveyances of public land and
water areas in Alaska, or any interest
therein, pursuant to Federal law,
including lands tentatively approved to
the State shall, pursuant to this section,
be regarded as a full and final
extinguishment of any and all Native
claims thereto.
34
S. Rep. No. 92-405, at 110 (emphasis added). This language,
part of a section-by-section analysis of S.35, makes it clear
that it was the intent of the framers of the extinguishment
clause of S.35 (which, denominated as § 4 (a) in the Seante
bill, was very similar to 4 (c) as it was finally adopted by the
House-Senate conferees) to specifically exclude tort claims,
such as those for trespass, from extinguishment.
The State of Alaska asserts that the emphasized passage
represents an unchanged explanation of an earlier version of
the Senate bill's extinguishment clause and is therefore of
dubious value. This argument must also fall when relevant
bill and report language as they developed during the Senate
committee's consideration are subjected to more critical
analysis.
As introduced by Senator Jackson early in the 92nd
Congress, the extinguishment clause of S.35 provided as
follows:
The provisions of this Act shall consti-
tute a full and final settlement and
extinguishment of any and all claims
against the United States, the State, and
all other persons which are based upon
aboriginal right, title, use, or occu-
pancy of land in Alaska (including sub-
merged land underneath all water areas,
both inland and off shore, and including
any aboriginal hunting or fishing right
that may exist) by any Native, Native
Village, or Native group or claims arising
under the Act of May 17, 1884 (23
Stat. 24), or the Act of June 6, 1900 (31
Stat. 32]) or any other statute or treaty
of the United States relating to Native
use or occupancy of land, including all
land claims (but not claims based on
35
grounds other than loss of original Indian
title land) pending before any court or
the Indian Claims Commission on the ef-
fective date of this Act.
(Emphasis added).
The extinguishment clause remained in this form in commit-
tee prints through early October 1971. Although the Edwardsen
suit was filed on October 5, more significantly the House
Committee had by that time reported out its version of the
settlement legislation. The House committee bill, H.R. 10367,
made provison for extinguishment in § 4:
(a) All prior conveyances of public land and water
areas in Alaska, or any interest therein, pursuant
to Federal law shall be regarded as an extinguish-
ment of the aboriginal title thereto, if any.
(b) All alleged aboriginal title and claims of
aboriginal title in Alaska based on use and occu-
pancy, including any alleged aboriginal hunting and
fishing rights that may exist, are hereby extin-
guished.
(c) All claims against the United States, the
State, and all other persons that are based on
alleged aboriginal right, title, use or occupancy of
land or water areas in Alaska, or that are based on
any statute or treaty of the United States relating
to Alaskan Native use and occupancy, including any
such claims that are pending before any court or the
Indian Claims Commission, are hereby extinguished.
When the Senate bill was reported out of committee on
October 21, it was closer in form to the House version. As
reported, § 4 (a) of S.35 had been changed to delete the
bracketed words and to add the underscored words:
The provisions of this Act shall consti-
tute a full and final settlement and
extinguishment of any and all claims
against the United States, the State and
all other persons which are based upon
aboriginal right, title, use, or occu-
pancy of land in Alaska (including sub-
merged land underneath all water areas,
36
both inland and off shore, and including
any aboriginal hunting or fishing rights
that may exist) by an Native, Native
Village, or Native group or claims arising
under the Act of May 17, 1884
(23 State. 24), or the Act of June 6, 1900
(31 Stat. 321), or any other statute or
treaty of the United States relating to
Native use or occupancy of land, including
all [land] claims [ (but not claims based
on grounds other than loss of original
Indian title land) ] based upon aboriginal
right, title, use or occupancy pending
before any court or the Indian Claims
Commission on the effective date of this
Act. All prior conveyances of public land
and water areas in Alaska, or any
interests therein, pursuant to Federal
law, including tentative approvals pur-
suant to section 6 (g) of the Alaska State-
hood act, shall be regarded as an extin-
guishment of any and all Native claims
thereto.
Notwithstanding the changes made in the revised version,
the Committee report retained the following language in its
description of the claims extinguished or preserved:
Remaining in effect and unextinguished by
this Act are all claims which are based
upon grounds other than the loss of origi-
nal Indian title land. Included in such
unextinguished claims are suits for an
accounting for funds belonging to Natives
or Native groups in the custody of the
United States, for tort or breach of con-
tract, and for violations of the fair and
honorable dealing clause of the Indian
Claims Commission Act.
S. Rep. No. 92-405 at 110 (emphasis added).
The State of Alaska argues that the foregoing statement is
of little consequence because the paragraph in the report is
identical to that contained in the 1970 Senate report describ-
ing the extinguishment clause before it was revised. In the
haste of completing its massive report, it is contended the
37
draftsman overlooked the language change in § 4 (a). There are
two reasons why this is not persuasive in diminishing the sig-
nificance of the report language on the question of intent.
First, it should be noted that the other late change made in
§ 4 (a) of S.35, i.e., the additional provision for validating
prior conveyances and State tentative approvals, was explained
in the Senate report. If the Senate committee intended to
attach any importance to the deletion of the word "land"
before "claims" and the elimination of the proviso for claims
other than those based on loss of aboriginal title, why did
the committee not take the same opportunity to revise the
report language as it did in adding a new paragraph in the
report referring to the validation of prior conveyances and
tentative approvals?
Second, the language changed to conform the Senate bill's
extinguishment clause more closely to that of the House com-
mittee is not inconsistent with the preservation of claims
based upon grounds other than the taking or loss of aboriginal
title. By their terms, there is nothing in § 4 of S.35, § 4 of
H.R. 10367, or § 4 as it emerged from the conference committee
that would preclude the continued existence and maintenance of
claims, such as the accrued trespass claims of Arctic Slope
Eskimos, that are based on grounds other than the taking or
loss of aboriginal title. The Senate report language explain-
ing the intent of the Senate on the question of the scope of
the extinguishment clause is entitled to great weight for in
describing § 4 in their report, the House-Senate conferees
38
declared "[t]he conference report language is, in substance,
the same as the language of the Senate amendment." H. Rep.
No. 92-746 at 40.
Attempting to support their assertions that § 4 (c) was
intended to extinguish accrued trespass claims, Senator
Stevens and the State of Alaska dwell at length upon the fact
that Edwardsen V. Morton was pending prior to enactment of the
Settlement Act, and most critically, was filed before the
late-October 1971 change in the Senate bill's extinguishment
clause. The Edwardsen case, however, was clearly perceived by
all as a challenge to Alaska's title to lands on the Arctic
Slope:
In addition, litigation has in recent
weeks been initiated by the Arctic North
Slope Native Association against the
State of Alaska over the title to Prudhoe
Bay.
S. Rep. No. 92-405 at 98 (emphasis added).
Even the leading proponent of the oil industry's position,
a representative of the Western Gas and Oil Association, who
suggested an amendment in committee to § 4 (a) of S.35 which
would have expressly named the Edwardsen case as being subject
to the extinguishment clause, viewed the case solely as a
challenge to the State's land title. In an explanation submit-
ted with the suggested amendatory language, the Edwardsen suit
was described as:
requesting that (a) all tentative appro-
vals granted by the Secretary of the
Interior to land selected by the State on
the Arctic Slope be canceled, (b) that the
Secretary be enjoined from granting any
further tentative approvals, and (c) that
an accounting be made to the [Arctic Slope
Native] Association.
39
This explanation also asserted that § 4(a), as then
drafted, was ambiguous as to whether the Edwardsen suit --
even as a challenge to title -- would be extinguished. It
argued that the suggested amendment was necessary to remove
the "cloud it [Edwardsen] poses for tentatively approved State
selections."
This deficiency in Alaska's title was what Congress wished
to remove. Section 4 of the Settlement Act was designed to
extinguish all claims representing a challenge to title
including those then viewed by Congress as being asserted in
Edwardsen. Trespass claims were not considered.
In summary, Congress enacted the Settlement Act to remove
a cloud on Alaska land title. Congress did not intend to
extinguish vested property rights. It expressly preserved
tort claims of Alaska Natives. It never considered trespass
claims.
On the basis of a fair reading of the language, purpose
and legislative history OS § 4, Congress did not intend to
extinguish accrued trespass claims of Arctic Slope Eskimos.
40
IV. ARGUMENTS BY THE STATE OF ALASKA THAT THE FIFTH AMENDMENT
DOES NOT APPLY TO THE PROPERTY RIGHTS OF INDIANS HAVE NO
BASIS IN AMERICAN LAW.
In it supplemental submission to this Committee, the State
of Alaska set forth several arguments which suggested, in
effect, that, while the Fifth Amendment might protect trespass
claims generally, it does not protect the trespass claims of
American Indians. Extinguishment Amendment Hearings, Part 2,
at 71-80. None of these arguments would be upheld in a court
of law.
A. The Argument That Indian Possessory Rights Are Infe-
rior To Those of The White Man
In its supplemental memorandum the State argued that tres-
pass claims of Arctic Slope Eskimos are not protected by the
Fifth Amendment because Congress has the power to extinguish
the possessory rights from which those claims arise without
payment of just compensation. See Extinguishment Amendment
Hearings, Part 2, at 71-74. Because the trespass claims of
other American citizens are fully protected by the Fifth
Amendment, Part II supra, the State's position is nothing more
than a statement that the right of Indians to seek relief from
American courts for third-party interference with their quiet
enjoyment of their lands is less than that of whites.
If the State's argument means that Indians have fewer
rights in the courts than whites, it violates fundamental
41
principles of equal protection. Even the tort claims of
aliens who have entered the United States illegally are con-
stitutionally protected.
One injured as a result of negligence of
another has a right of action against that
other to recover damages sustained by
reason of such injury. That right of
action is property.
While an alien is permitted by the Govern-
ment of the United States to remain in the
country, he is entitled to the protection
of the laws in regard to his right of per-
son and property. He is entitled to the
benefits of the Fourteenth Amendment.
Congress, had it seen fit to do so, might
have provided that an alien making an
illegal entry into the country should be
denied all civil rights, and the protec-
tion of the Fourteenth and Fifth Amend-
ments. Congress has not so acted
It is not for the court to add to these
penalties by depriving him of his pro-
perty. In this case the right to recover
damages for the injury inflicted by
defendant.
Martinez V. Fox Valley Buslines, 17 F. Supp. 576, 577 (N.D.
Ill. 1936). Presumably the rights of American Indians to
seek relief from the courts for torts to their property are at
least as great as those of illegally-entered aliens.
If, on the other hand, the State's argement means that
Indian rights of exclusive possession confer less protection
against third-party interference with quiet enjoyment than do
white property interests, it overlooks the very essence of the
United State's guarantees to American Indian's respecting
their aboriginal lands and its fiduciary duty to enforce them.
42
Courts have repeatedly reaffirmed the principle that the
right of American Indians to the exclusive possession of their
lands is entitled to the same sovereign protection as the
rights of whites.
One uniform rule seems to have prevailed
from [the Europeans'] first settlement,
as appears by their laws; that friendly
Indians were protected in the possession
of the lands they occupied, and were con-
sidered as owning them by a perpetual
right of possession in the tribe or nation
inhabiting them as their common property
from generation to generation, not as the
right of the individuals located on parti-
cular spots.
Subject to this right of possession, the
ultimate fee was in the crown and its
grantees, which could be granted by the
crown or colonial legislatures while the
lands remained in possession of the
Indians, though possession could not be
taken without their consent.
Indian possession or occupation was
considered with reference to their habits
and modes of life; their hunting grounds
were as much in their actual possession as
the cleared fields of the whites; and
their rights to its exclusive enjoyment in
their own way and for their own purposes
were as much respected, until they aban-
doned them, made a cession to the govern-
ment, or an authorized sale to indivi-
duals.
Such, too, was the view taken by this
court of Indian rights in the case of
Johnson V. McIntosh, (8 Wheat. 571, 604),
which has received universal assent.
The merits of this case do not make it
necessary to inquire whether the Indians
43
within the United States had any other
rights of soil or jurisdiction; It is
enough to consider it as a settled prin-
ciple that their right of occupancy is
considered as sacred as the fee simple of
the whites. (5 Pet. 48).
Mitchel V. United States, 34 U.S. (19 Pet.) 711, 745-46
(Marshall, C.J.; emphasis added). In 1974 the Supreme Court
once again affirmed Chief Justice Marshall's declaration that
Indian occupancy rights are equivalent to those of whites.
In United States V. Santa Fe Pacific R.
Co. 314 US 339, 345, 86 L Ed 260, 62 S Ct
248 (1941), a unanimous Court succinctly
summarized the essence of past cases in
relevant respects:
"unquestionably it has been
the policy of the Federal
Government from the beginning
to respect the Indian right of
occupancy, which could only be
interfered with or determined
by the United States." Cramer
V. United States, 261 US 219,
227, 67 L ed 622, 625, 43 S Ct
342. This policy was first re-
cognized in Johnson V.
M'Intosh, 8 Wheat. (US) 543, 5 L
ed 681, and has been repeatedly
reaffirmed.
Worcester V.
Georgia, 6 Pet. (US) 515, 8 L ed
483; Mitchel V. United States,
9 Pet. (US) 711, 1 L ed 283;
Chouteau V. Malony, 16 How.
(US) 203, 14 L ed 905; Holden V.
Joy, 17 Wall. (US) 211, 21 L ed
523; Buttz V. Northern P. R. Co.
119 US 55, 30 L ed 330, 7 S Ct
100 supra; United States V.
44
Shoshone Tribe, 304 US 111, 82 L
ed 1213, 58 S Ct 794. As stated
in Mitchell V. United States,
supra (9 Pet. (US) 746, 9 L ed
296), the Indian "right of oc-
cupancy is considered as sacred
as the fee simple of the
whites."
Oneida Indian Nation V. County of Oneida, 414 U.S. 661, 668-69
(1974).
The State of Alaska's argument that Indian possessory
rights are inferior to those of whites because the former are
not protected by the Fifth Amendment is especially strange in
view of the United States fudiciary duty to American Indians.
Since the inception of our Nation's history, the United States
has acted as a trustee or guardian for the real property in-
terests of American Indians to protect the interests against
white interference or exploitation. The Supreme Court has
characterized the United States' trust responsibilities as
involving "moral obligations of the highest responsibility and
trust.' Seminole Nation V. United States, 316 U.S. 286, 297
(1942) and as binding the United States "by every moral and
equitable consideration to discharge its trust with with good
faith and fairness." United States V. Payne, 264 U.S. 446,
448 (1924). The United States' fiduciary duty requires it to
take affirmative measures to prevent interference with quiet
enjoyment of Indian lands or to seek compensation for such
interference once it occurs. In view of this special rela-
tionship between American Indians and the United States which
45
guarantees not only a remedy in the courts to protect Indians'
quiet enjoyment of land but also the active intervention of
the federal government on their behalf, the state of Alaska's
argument that Indian possessory rights are inferior to those
of whites defies rational belief.
In terms of protection of property from unconsented inter-
eference, there is only one difference between Indian posses-
sory rights and white property interests. In 1955 the Supreme
Court decided that Congress may prospectively extinguish
Indian possessory rights "without any legally enforceable
obligation to compensate the Indians." Tee-Hit-Ton Indians V.
United States, 348 U.S. 272, 279 (1955). Under that decision
Indians holding land under unrecognized aboriginal title do
not have property rights of perpetual quiet enjoyment as
against the United States because Congress may extinguish
prospectively those rights at any time. As to the rest of the
world, however, Indian possessory rights are property fully
protected by the Constitution. Congress alone, not oil
companies, federal officials or the State of Alaska, has the
power of prospective extinguishment. Until such time as
Congress exercises that power, those rights are protected by
the United States against all intrusion by third parties, Tee-
Hit-Ton, supra at 279, just like white property interests.
The failure to distinguish between the interest of Arctic
Slope Eskimos in perpetual quiet enjoyment of their lands as
46
against the United States and the interest of Arctic Slope
Eskimos in quiet enjoyment of their lands as against third
parties lies at the heart of the State's erroneous "the
greater includes the lesser" argument. See Extinguishment
Amendment Hearings, Part 2, at 71-74. The two interests are
entirely different. Under Tee-Hit-Ton the sovereign makes no
guarantee of protection respecting the first but explicitly
guarantees the second until such time as Congress lawfully
enacts a prospective extinguishment. The assertion that Con-
gress can extinguish trespass claims because it can extinguish
aboriginal title completely overlooks this distinction and
belittles the guarantee of quiet enjoyment of land given by
the United States to American citizens -- whites, Indians and
all others alike.
B. The Argument that Indian Possessory Rights May be
Extinguished Because They are Based on Statutory
Rights
The State of Alaska has also suggested to this Committee
that trespass claims filed under the Edwardsen stipulations
may be extinguished without offending the Fifth Amendment
because that Amendment does not protect causes of action
created by legislative enactment. See Extinguishment Amend-
ment Hearings, Part 2, at 74-78. This suggestion is without
merit.
47
Even if this rule existed, it would not apply to Indian
possessory rights because those rights are not dependent on
statutes.
[A] tribal right of occupancy, to be protected, need
not be "based upon treaty, statute, or other formal
government action."
Oneida Indian Nation V. County of Oneida, 414 U.S. 661, 669
(1974) quoting United States V. Santa Fe Pacific R. Co., 314
U.S. 339, 347 (1941). Oneida holds squarely that a claim for
interference with Indian possessory rights arises under fed-
eral common law. 414 U.S. at 674.
The proposition that a tribe needs no
grant of authority from the Federal Gov-
ernment in order to exercise its inherent
power of excluding trespassers has been
repeatedly affirmed by the Attorney
General.
F. Cohen, Handbook of Federal Indian Law 306 (1945).
Like other common law causes of action, the trespass
claims of Arctic Slope Eskimos are fully protected by the
Fifth Amendment.
C. The Argument that Congress can Retroactively Ratify
Trespasses to the Arctic Slope
The State's final argument that the Fifth Amendment does
not apply to trespass claims of Arctic Slope Eskimos is that
those claims can be extinguished through retroactive ratifica-
tion because Congress could have authorized the trespasses at
the time they occurred. Extinguishment Amendment Hearings,
Part 2, at 78-80. This argument fails in several respects.
48
First, ratification assumes there is an act to ratify.
For extinguishment of aboriginal title in 1975 to relate back
through ratification, assuming arguendo that such ratification
is constitutional, there must have been some act of a federal
official which, though unauthorized by Congress, purported to
extinguish the aboriginal title of Arctic Slope Eskimos. As
the State of Alaska well knows, no official act of any federal
officer ever attempted such an extinguishment. Section 15 of
S. 1824 cannot accomplish under the guise of ratification what
it can not constitutionally do directly because there is
nothing to ratify.
Ratification of the acts of federal officials which pur-
ported to convey oil leases or other uses of Arctic Slope
lands or of the various tentative approvals given by the
Secretary of the Interior to land selections of the State of
Alaska would not extinguish Eskimo trespass claims. If law-
fully ratified, the legal consequence of those acts would only
be to validate retroactively transfers of the United States'
underlying fee interest. The Supreme Court has repeatedly
held that such transfers of the United States' fee interest in
public lands does not extinguish or even affect Indian posses-
sory rights which survive the transfer and remain as an encum-
brance on the fee.
49
The land in controversy and other lands
in Dakota, through which the Northern
Pacific Railroad was to be constructed,
was within what is known as Indian coun-
try. At the time the Act of July 2, 1864,
was passed, the title of the Indian Tribes
was not extinguished. But that fact did
not prevent the grant of Congress from
operating to pass the fee of the land to
the Company. The fee was in the United
States. The Indians had merely a right of
occupancy, a right to use the land subject
to the dominion and control of the govern-
ment. The grant conveyed the fee subject
to this right of occupancy. The Railroad
Company took the property with this incum-
brance. The right of the Indians, it is
true, could not be interfered with or
determined except by the United States.
No private individual could invade
it
Buttz V. Northern Pacific R.R. Co., 110 US. 55, 30 L Ed. 330,
334 (1886) ; accord, United States V. Santa Fe Pacific R. Co.,
314 U.S. 339, 347 (1941); ; Beecher V. Wetherby, 95 U.S. 517
(1877). The rule is well-settled that, in the absence of
express language to the contrary, a federal conveyance of
public lands does not constitute an extinguishment of Indian
possessory rights. Santa Fe, supra at 354-55, 359-60, Johnson
V. McIntosh, 21 U.S. (8 Wheat.) 543 (1823) ; Worcester V.
Georgia, 31 U.S. (6 Pet.) 515, 546, (1832) ; Beecher V.
Wetherby, supra, Chouteau V. Molony, 57 U.S. (16 How.) 203,
239 (1853).
50
Until the Alaska Native Claims Settlement Act, became law
no lease, tentative approval or other conveyance by the United
States contained any express language which purported to ex-
tinguish the aboriginal title of Arctic Slope Eskimos. Rati-
fication of those prior conveyances by Congress would not ex-
tinguish aboriginal title effective at any time prior to
December 18, 1971. Even if such ratification effectively
validated those conveyances, the possessory rights would
remain as an encumbrance on the fee until December 18, 1971.
Because the trespass claims of Arctic Slope Eskimos all relate
to acts committed before that date, ratification by § 15 of S.
1824 would not affect suits under Edwardsen.
Second, because there were no acts of federal officials
which Congress could now ratify which would have the effect of
extinguishing trespass claims, the only other possibility
would be ratification of the trespasses themselves. That
cannot be done, however, because ratification occurs only in
the context of a principal-agent relationship. No responsible
person has ever suggested that the oil company trespassers to
the Arctic Slope were acting on behalf of the United States at
the time the trespasses occured.
Third, even if ratification could somehow be effected, the
result would be assumption by the United States of joint and
several liability with the trespassers. Through ratification
51
a principal assumes liability for the otherwise unauthorized
acts of an agent. Restatement (Second) of Agency $218 (1957).
Until aboriginal title was extinguished on December 18, 1971,
agents of the United States had no more right to commit
trespass on the Arctic Slope than did the oil companies. The
State's citation to United States V. Northern Paiute Nation,
490 F. 2d 954 (Ct. Cl. 1974), for the contrary proposition is
wholly in error. The Court of Claims assumed in that case that
any effective ratification of torts by the United States would
make it directly liable to the Northern Paiutes. 490 F. 2d at
958. Thus, ratification would not serve to extinguish
trespass liability but only to impose it on the United States.
Extinguishment of trespass claims by ratification is
impossible because there were no acts of lawful agents of the
United States which could be ratified to achieve the desired
effect. Even if ratification were possible, it would not
serve to extinguish trespass liability but only to shift it
from the oil companies to the United States. Ratification is
not a cure for the Fifth Amendment infirmities in legislation
extinguishing accrued trespass claims of Arctic Slope Eskimos.
52
V.
ARCTIC SLOPE ESKIMOS ARE NOT BARRED FROM RAISING THEIR
DAMAGE CLAIMS FOR TRESPASSORY CONDUCT BY ACCEPTING BENE-
FITS UNDER THE SETTLEMENT ACT AND HAVE NOT RELINGUISHED
THOSE CLAIMS.
The State of Alaska has suggested to this Committee that
even if the trespass claims of Arctic Slope Eskimos are pro-
tected by the Fifth Amendment and are actionable, those claims
may not be raised because the Eskimos have accepted the bene-
fits of the Settlement Act or because they voluntarily relin-
quished those claims. Extinguishment Amendment Hearings, Part
2, at 81-87. Neither argument has merit.
A. No Acceptance of Benefits Rule Applies
The State's claim that Arctic Slope Eskimos cannot chal-
lenge the constitutionality of the Settlement Act because they
have accepted its benefits wholly misapprehends the Eskimo's
legal position and the opinion of the Court in Edwardsen V.
Morton, 369 F. Supp. 1359 (D.D.C. 1973). Judge Gasch did not
rule that § 4 (c) of the Settlement Act was unconstitutional.
He ruled that as a matter of statutory construction, it did
not extinguish pre-Act trespass claims. 369 F. Supp. at 1379.
Arctic Slope Eskimos agree with Judge Gasch. Because Con-
gress did not intend to extinguish their Fifth Amendment
rights and § 4 (c) did not extinguish them, there is no reason
to challenge the constitutionality of the Act. The State's
acceptance of benefits argument is a classic "red herring."
Even under the rule as it appears in the State's own
cases, Arctic Slope Eskimos would not be barred from chal-
53
lenging the Settlement Act's constitutionality. Contrary to
the State's assertion, Arctic Slope Eskimos did not support
final passage of the Settlement Act. During the closing
months of congressional deliberation on the Act, when it ap-
peared to the Eskimos that, in their judgement, the legisla-
tion would not deal fairly with their land claims, Edwardsen
V. Morton was filed to assert their land rights. Arctic Slope
Eskimos cast the lone dissenting vote against a resolution of
the Alaska Federaltion of Natives resolution endorsing the
Act. After the Act was passed by Congress, Arctic Slope
Eskimos sent a telegram to President Nixon stating at length
their reasons for opposing it and urging a veto.
After the Settlement Act became law - despite their op-
position -- Arctic Slope Eskimos had no choice but to comply
with its terms. The language of all of its key provisions is
injunctive: "the State of Alaska shall be divided
into
twelve geographic regions" [ § 7(a)], "Five incorporators
within each region
...
shall select" [S 12 (a) (1)], etc.
Arctic Slope Eskimos had no greater discretion to disobey
these positive provisions of law than any other law of the
United States. No court would even suggest that Arctic Slope
Eskimos had any choice but to comply with the mandate of the
Alaska Native Claims Settlement Act, particularly in view of
dramatic penalty for failing to select land within the time
limitations imposed by § 12.
54
Finally, if there were ever any question regarding accep-
tance of benefits, Arctic Slope Eskimos would be more than
willing to agree to a rescissionof the Settlement Act and a
restoration of the status quo ante as of December 17, 1971.
B. Arctic Slope Eskimos have Never Relinguished Their
Damage Claims for Pre-Settlement Act Trespasses.
Based on its explication of United States V. Santa Fe
Pacific R.R. Co., 314 U.S. 339 (1941), the State of Alaska has
argued that claims for past trespasses are extinguished by a
settlement of the question of aboriginal title. The issue of
relinguishment in Santa Fe, however, was a question of fact.
After a careful view of the record, Justice Douglas concluded
that the Walapais request for a reservation, their perceived
need for an area secure from white penetration to keep them
from losing all their lands, and their acceptance of the re-
servation created at their request amounted in fact to a
relinquishment of their claims to lands outside the rever-
vation. 314 U.S. at 356-58.
Subsequent decisions following Santa Fe have underscored
the factual basis of its holding.
Another principle of the Santa Fe opinion
is that Indian settlement on a reservation
should be seen as an abondonment of claims
only when the specific circumstances
warrant that conclusion. Santa Fe in-
volved two reservations. The first,
created by an act of Congress, was con-
strued not to effect an extinguishment of
Indian title. The rule of construction
55
affirmed by the Court was that "extin-
guishment cannot be lightly implied in
view of the avowed solicitude of the
Federal Government for the welfare of its
Indian wards." 314 U.S. at 354, 62 S. Ct.
at 255. In this light, the Court consi-
dered the establishment of the first re-
servation as merely an offer by Congress
to resolve Indian land claims, which offer
was never accepted by conduct or other-
wise. It was only the second reservation,
established by Executive Order, that led
to extinguishment of aboriginal title,
and the Court was careful in phrasing its
conclusion to indicate that the specific
facts justified this result:
Turtle Mountain Band of Chippewa Indians V. United States, 490
F. 2d 935, 946 (Ct. Cl. 1974) (emphasis added). In Turtle
Mountain, itself, the Court of Claims refused to find that the
creation of a reservation for the Chippewa Indians was a set-
tlement of their overall land claims.
The Commission did find that in 1876 the Chippewa
Indians in this area petitioned Congress to establish
a reservation for them. But we have been shown no
evidence indicating that this Executive Order reser-
vation fulfilled the Indians' request or that the
reservation was ever "accepted" by the Chippewas as a
settlement of their land claims.
490 F. 2d at 947
As the State of Alaska well knows, Arctic Slope Eskimos
never agreed to the Settlement Act as a settlement of their
trespass claims. No member of Congress, prior to the passage
of the Settlement Act ever stated that it had been accepted by
Arctic Slope Eskimos as a settlement of their trespass claims
or was so intended by Congress itself. Relinquishment is a
question of fact. There are no facts to show that Arctic Slope
Eskimos have ever relinquished their trespass claims--in
exchange for enactment of the Settlement Act or otherwise.
56